□ UNITED STATES DISTRICT COURT □ WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION
MATHESON TRI-GAS, INC. CASE NO. 2:16-CV-01303 VERSUS JUDGE JAMES D. CAIN, JR. WILLIAMSON GENERAL MAGISTRATE JUDGE KAY CONTRACTORS, INC. MEMORANDUM RULING Before the court is a Motion to Vacate [doc. 116] filed under Federal Rules of Civil Procedure 6(b)(1)(B) and 60(b)(1) by defendant Williamson General Contractors, □□ (“Williamson”), in response to the Memorandum Ruling [doc. 114] and Judgment [doc. 115] of this court granting the Motion for Summary Judgment [doc. 110] filed by i Matheson Tri-Gas, Inc. (“Matheson”). Matheson opposes the Motion to Vacate and Williamson has filed a reply. Docs. 119, 120.
BACKGROUND This action arises from contract disputes between Matheson and Williamson| for work on Matheson’s construction of a new gas plant in Westlake, Louisiana. The factual background has been summarized at length in the court’s prior opinions. See, □□□□□ Matheson Tri-Gas, Inc. v. Williamson Gen. Contractors, Inc., 2019 WL 1562247, at *1 (W.D. La. Feb. 28, 2019), report and recommendation adopted, 2019 WL 1561369 of La. Apr. 10, 2019). Matheson seeks damages from Williamson based on its alleged abandonment of the project after its demands for additional sums were unmet, td
subrogation to the rights of any subcontractors whose liens it was required to satisfy as a result of Williamson’s alleged abandonment. Jd. Williamson also filed several counterclaims, most of which were dismissed on a prior motion for summary judgment, /d. However, its counterclaims for bad faith breach of contract and detrimental reliance remained before the court. /d. Relevant to the instant motion, Matheson filed a Motion for Partial Summary Judgment [doc. 105] on May 17, 2019, asserting that it is entitled to judgment as a matter of law on its claim for indemnity under the Louisiana Private Works Act (““LPWA”), La. Rev. Stat. § 9:4801 et seg. Doc. 105. Williamson opposed the motion. Doc. 108. On June 7, 2019, the same day that Williamson filed its opposition to the motion for partial sum judgment, Matheson also moved for summary judgment (“second motion for summary judgment”) on Williamson’s two remaining counterclaims. Doc. 110. A notice of moe setting was issued on June 10, 2019, and specified that Williams’s opposition to the second motion for summary judgment was due within 21 days after service of the motion in accordance with Local Rule 7.5. Doc. 111. Williams did not file any opposition within that time.' The court therefore treated the second motion for summary judgment as opps ed when it ruled on July 30, 2019, and granted both motions. See doc. 114. As to the latt r it noted that Matheson’s statement of uncontested material facts must be accepted as true due to Williamson’s failure to oppose the motion. Jd.
1 Williamson received another reminder of the pending second motion for summary judgment on July 18, 2019, when the motion was transferred to the undersigned. See doc. 119, att. 2. -2-
Within two days of that ruling, Williamson filed the instant motion to vacate. Doc. 116. Here it admits that notice of the new filing was received by lead counsel. Doc. 1/16, att. 2, §] 7-10. It explains that its failure to oppose the second motion for summary judgment [doc. 110] was due to counsel’s mistake in not recognizing that the new filing was an independent motion rather than something filed in connection with the motion |for partial summary judgment, filed the same day.” Accordingly, it requests that the court vacate its ruling as to the second motion for summary judgment and allow it (Williamson) time to file a response. Matheson opposes the request. Doc. 119. Il. LAW & APPLICATION Williamson brings this Motion to Vacate under Federal Rules of Civil Procedure 6(b)(1)(B) and 60(b)(1). Rule 6(b)(1)(B) provides that the court may, at a party’s me extend a deadline even after it has passed if the party failed to act because of excusable neglect. Meanwhile, Rule 60(b) provides several grounds for granting relief from a final judgment, order, or proceeding, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Because Williamson could not be granted leave to
oppose the second motion for summary judgment without the court’s ruling first being vacated, the court addresses the grounds for relief under Rule 60(b) first and only considers extension of the deadline if it vacates the judgment.
2 In his affidavit, lead counsel admits that he received automatic notice of the filing on June 7 but does not - the court’s notice of motion setting or the docket entry noting transfer of the motions. Doc. 116, att. 2. -3-
Relief under Rule 60(b) is an extraordinary remedy that should only be granted in unusual or unique circumstances. Pryor v. U.S. Postal Service, 769 F.2d 281, 287 (Sth Cir. 1985). The availability of such relief does not trump a party’s duty of diligence, and|the court would abuse its discretion if it were to grant relief when the only justification “is one attributable solely to counsel’s carelessness with or misapprehension of the law or |the applicable rules of court.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 357 (5th Cir. 1993) (citing Knapp v. Dow Corning Corp., 941 F.2d 1336, 1338 (Sth □□□ 1991)). “Calendaring errors and mistakes about deadlines qualify as a careless mistake of counsel.” Rayford v. Karl Storz Endoscopy Am., Inc., 740 F. App’x 435, 437 (Sth Cir. 20/18) (collecting cases). Accordingly, Rule 60(b) is “inapplicable to provide relief from the errors that counsel . . . committed during the actual representation of their clients.” Assoc. Marine Equip., LLC v. Jones, 301 F. App’x 346, 350 (Sth Cir. 2008); see also Pryor, 769 F.2¢ at 289 (“While we are sympathetic to the plight of a client prejudiced by his so inadvertence or negligence, the proper recourse for the aggrieved client . . . is to malpractice damages from the attorney.”) Here the only justification for relief is counsel's error in not recognizing the filing of a second motion for summary judgment or filing a timely response. Under Bohlin and Pryor, then, the motion should be denied. Williamson argues that counsel’s neglect is nonetheless excusable. It first argues that the court must examine its motion liberally, under the standards applicable to setting aside default judgments. As Matheson asserts, however, entry of summary judgment □□ not take effect of a default judgment in this matter. Instead, Williamson had already made
an appearance and submitted responsive pleadings in this matter, and the court consid -A-
the record (including Williamson’s exhibits on the prior motion for summary judgm before reaching a decision. Accordingly, Williamson is entitled to no special i in its motion to vacate.? Accord Smith v. Alumax Extrusions, Inc., 868 F.2d 1469, 1471472 (5th Cir. 1989). Williamson also notes that, because its motion was made within twenty-eight days of judgment, it may be considered under the less “exacting” standards of Rule 59(e) as a motion to alter or ament a judgment. See Artemis Seafood, Inc. v. Butcher’s Choice, Inc., 1999 WL 1032798, at *1-*2 (N.D. Tex. Nov. 10, 1999).
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□ UNITED STATES DISTRICT COURT □ WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION
MATHESON TRI-GAS, INC. CASE NO. 2:16-CV-01303 VERSUS JUDGE JAMES D. CAIN, JR. WILLIAMSON GENERAL MAGISTRATE JUDGE KAY CONTRACTORS, INC. MEMORANDUM RULING Before the court is a Motion to Vacate [doc. 116] filed under Federal Rules of Civil Procedure 6(b)(1)(B) and 60(b)(1) by defendant Williamson General Contractors, □□ (“Williamson”), in response to the Memorandum Ruling [doc. 114] and Judgment [doc. 115] of this court granting the Motion for Summary Judgment [doc. 110] filed by i Matheson Tri-Gas, Inc. (“Matheson”). Matheson opposes the Motion to Vacate and Williamson has filed a reply. Docs. 119, 120.
BACKGROUND This action arises from contract disputes between Matheson and Williamson| for work on Matheson’s construction of a new gas plant in Westlake, Louisiana. The factual background has been summarized at length in the court’s prior opinions. See, □□□□□ Matheson Tri-Gas, Inc. v. Williamson Gen. Contractors, Inc., 2019 WL 1562247, at *1 (W.D. La. Feb. 28, 2019), report and recommendation adopted, 2019 WL 1561369 of La. Apr. 10, 2019). Matheson seeks damages from Williamson based on its alleged abandonment of the project after its demands for additional sums were unmet, td
subrogation to the rights of any subcontractors whose liens it was required to satisfy as a result of Williamson’s alleged abandonment. Jd. Williamson also filed several counterclaims, most of which were dismissed on a prior motion for summary judgment, /d. However, its counterclaims for bad faith breach of contract and detrimental reliance remained before the court. /d. Relevant to the instant motion, Matheson filed a Motion for Partial Summary Judgment [doc. 105] on May 17, 2019, asserting that it is entitled to judgment as a matter of law on its claim for indemnity under the Louisiana Private Works Act (““LPWA”), La. Rev. Stat. § 9:4801 et seg. Doc. 105. Williamson opposed the motion. Doc. 108. On June 7, 2019, the same day that Williamson filed its opposition to the motion for partial sum judgment, Matheson also moved for summary judgment (“second motion for summary judgment”) on Williamson’s two remaining counterclaims. Doc. 110. A notice of moe setting was issued on June 10, 2019, and specified that Williams’s opposition to the second motion for summary judgment was due within 21 days after service of the motion in accordance with Local Rule 7.5. Doc. 111. Williams did not file any opposition within that time.' The court therefore treated the second motion for summary judgment as opps ed when it ruled on July 30, 2019, and granted both motions. See doc. 114. As to the latt r it noted that Matheson’s statement of uncontested material facts must be accepted as true due to Williamson’s failure to oppose the motion. Jd.
1 Williamson received another reminder of the pending second motion for summary judgment on July 18, 2019, when the motion was transferred to the undersigned. See doc. 119, att. 2. -2-
Within two days of that ruling, Williamson filed the instant motion to vacate. Doc. 116. Here it admits that notice of the new filing was received by lead counsel. Doc. 1/16, att. 2, §] 7-10. It explains that its failure to oppose the second motion for summary judgment [doc. 110] was due to counsel’s mistake in not recognizing that the new filing was an independent motion rather than something filed in connection with the motion |for partial summary judgment, filed the same day.” Accordingly, it requests that the court vacate its ruling as to the second motion for summary judgment and allow it (Williamson) time to file a response. Matheson opposes the request. Doc. 119. Il. LAW & APPLICATION Williamson brings this Motion to Vacate under Federal Rules of Civil Procedure 6(b)(1)(B) and 60(b)(1). Rule 6(b)(1)(B) provides that the court may, at a party’s me extend a deadline even after it has passed if the party failed to act because of excusable neglect. Meanwhile, Rule 60(b) provides several grounds for granting relief from a final judgment, order, or proceeding, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Because Williamson could not be granted leave to
oppose the second motion for summary judgment without the court’s ruling first being vacated, the court addresses the grounds for relief under Rule 60(b) first and only considers extension of the deadline if it vacates the judgment.
2 In his affidavit, lead counsel admits that he received automatic notice of the filing on June 7 but does not - the court’s notice of motion setting or the docket entry noting transfer of the motions. Doc. 116, att. 2. -3-
Relief under Rule 60(b) is an extraordinary remedy that should only be granted in unusual or unique circumstances. Pryor v. U.S. Postal Service, 769 F.2d 281, 287 (Sth Cir. 1985). The availability of such relief does not trump a party’s duty of diligence, and|the court would abuse its discretion if it were to grant relief when the only justification “is one attributable solely to counsel’s carelessness with or misapprehension of the law or |the applicable rules of court.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 357 (5th Cir. 1993) (citing Knapp v. Dow Corning Corp., 941 F.2d 1336, 1338 (Sth □□□ 1991)). “Calendaring errors and mistakes about deadlines qualify as a careless mistake of counsel.” Rayford v. Karl Storz Endoscopy Am., Inc., 740 F. App’x 435, 437 (Sth Cir. 20/18) (collecting cases). Accordingly, Rule 60(b) is “inapplicable to provide relief from the errors that counsel . . . committed during the actual representation of their clients.” Assoc. Marine Equip., LLC v. Jones, 301 F. App’x 346, 350 (Sth Cir. 2008); see also Pryor, 769 F.2¢ at 289 (“While we are sympathetic to the plight of a client prejudiced by his so inadvertence or negligence, the proper recourse for the aggrieved client . . . is to malpractice damages from the attorney.”) Here the only justification for relief is counsel's error in not recognizing the filing of a second motion for summary judgment or filing a timely response. Under Bohlin and Pryor, then, the motion should be denied. Williamson argues that counsel’s neglect is nonetheless excusable. It first argues that the court must examine its motion liberally, under the standards applicable to setting aside default judgments. As Matheson asserts, however, entry of summary judgment □□ not take effect of a default judgment in this matter. Instead, Williamson had already made
an appearance and submitted responsive pleadings in this matter, and the court consid -A-
the record (including Williamson’s exhibits on the prior motion for summary judgm before reaching a decision. Accordingly, Williamson is entitled to no special i in its motion to vacate.? Accord Smith v. Alumax Extrusions, Inc., 868 F.2d 1469, 1471472 (5th Cir. 1989). Williamson also notes that, because its motion was made within twenty-eight days of judgment, it may be considered under the less “exacting” standards of Rule 59(e) as a motion to alter or ament a judgment. See Artemis Seafood, Inc. v. Butcher’s Choice, Inc., 1999 WL 1032798, at *1-*2 (N.D. Tex. Nov. 10, 1999). To prevail on such a motion, however, a party is still required to show (1) that the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; or (4) the motion is justified by an intervening change in the controlling law. Flynn v. Terrebonne Par. Sch. Bd., 348 F .Supp.2d 769, 771 (E.D. La. 2004). Only the third factor is potentially relevant here. The case law in this circuit on attorney error — and the availability for Williamson of an alternative remedy in malpractice — show that no manifest injustice was done by the granting of summary judgment when his counsel failed to oppose the motion. Finally, Williamson maintains that the court must examine counsel’s admitted error under the factors outlined in Pioneer Investment Services Co. v. Brunswick “t 3 Williamson argues that Smith is distinguishable because this was Matheson’s second motion for summary judgment on its counterclaims, and Matheson provided “little if any explanation of what new evidence had emerged” to justify its “second bite at the apple.” Doc. 120, pp. 6-7. Matheson provided a detailed affidavit and appendices responding to Williamson’s assertions of outstanding invoices, and the court found these sufficient to carry its burden onj the summary judgment motion. -5-
Ltd. Partnership, 507 U.S. 380 (1993). There the Court set forth guidance to ee whether attorney error counted as excusable neglect under federal bankruptcy □□□ permitting late filings.* The Fifth Circuit has cited Bohlin and Pryor approvingly numerbus times in the years since Pioneer Investment Services, and continues to emphasize bet attorney error does not provide a basis for relief under Rule 60(b). See, e.g., Rayford, □□ F. App’x at 437 (collecting cases). It has also “regularly found ‘excusable sexier in responding to a dispositive motion only in circumstance where, through inadvertence, □□ party or its attorney did not receive notice.” McKenzie v. Principi, 83 F. App’x 642, 644 (5th Cir. 2003) (collecting cases). In this matter counsel has admitted that he ese notice but, due to his own carelessness, failed to recognize what the new filing was. “Were [the court] to make an exception to the finality of judgment each time a hardship was ak upon the unfortunate client of a negligent or inadvertent attorney, even though the =e be disproportionate to the deficiency, courts would be unable to ever adequately redraw that line again, and meaningful finality of judgment would disappear.” Pryor, 769 ra at 288-89. Accordingly, there is no basis for departing from the Fifth Circuit’s settled guidance under Rule 60(b) and Williamson is not entitled to relief from judgment in + matter based on counsel’s error.
4 That case requires that the court consider (1) the possible prejudice to the later filer, (2) the length of delay and te impact on judicial proceedings, (3) the reason for delay, especially if it was in the reasonable control of the movant, and whether the movant acted in good faith. Id. at 395. -6-
Ill. CONCLUSION For the reasons stated above, the Motion to Vacate [doc. 116] will be denied. THUS DONE in Chambers on this / day of ff aree} , 2019. 7 a, D. CAIN, xe UNfTED STATES DISTRICT PGF
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