Mitchell v. Burt & Gordon, P.C.

179 F.R.D. 584, 1998 U.S. Dist. LEXIS 9838
CourtDistrict Court, D. Oregon
DecidedJune 3, 1998
DocketNos. 392-33885-S7; Adversary No. 92-3112-S; Civ. No. 93-438-FR
StatusPublished

This text of 179 F.R.D. 584 (Mitchell v. Burt & Gordon, P.C.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Burt & Gordon, P.C., 179 F.R.D. 584, 1998 U.S. Dist. LEXIS 9838 (D. Or. 1998).

Opinion

OPINION

FRYE, District Judge.

The matters before the court are 1) the motion of defendant Mark A. Gordon pursuant to FRCP 60(B) to vacate and re-enter judgment (#433); and 2) the motion of defendants Burt & Gordon, P.C. and Robert G. Burt under Fed.R.Civ.P. 60(b)(1) and 60(b)(6) to vacate judgment and re-enter it (# 438-1) or, in the alternative under Fed.R.App.P. 4(a), to reopen the time for filing an appeal (# 438-2).

BACKGROUND

On August 6,1997, this court entered judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) in favor of the plaintiff and against the defendants following a jury trial and verdict in favor of the plaintiff on his second claim for relief and after the verdict of the court on the plaintiffs remaining claims.

On August 18, 1997, defendants Burt & Gordon, P.C. and Robert G. Burt filed 1) a motion for entry of judgment on plaintiffs breach of fiduciary duty claim and on the award of punitive damages or a new trial on these issues; and 2) a motion to amend findings and judgment under Fed.R.Civ.P. 52(b).

On August 20, 1997, this court entered an order setting the motion of defendants Burt & Gordon, P.C. and Robert G. Burt for entry of judgment on plaintiffs breach of fiduciary duty claim and on the award of punitive damages or new trial and the motion to amend findings and judgment on the court’s calendar of September 22, 1997 not for oral argument.

On August 21, 1997, defendant Gordon filed a motion for a new trial or for judgment as a matter of law.

On August 22, 1997, this court entered an order setting defendant Gordon’s motion for a new trial or for judgment as a matter of law on its not for oral argument calendar of September 22,1997.

On October 1, 1997, the court entered three separate orders denying 1) the motion of defendants Burt & Gordon, P.C. and Robert G. Burt for entry of judgment on plaintiffs breach of fiduciary duty claim and on the award of punitive damages or new trial; 2) the motion of defendant Burt & Gordon, P.C. and Robert G. Burt to amend findings and judgment; and 3) the motion of defendant Gordon for a new trial or for judgment as a matter of law. On October 2, 1997, these orders were placed in the file and entered on the official court record in docket numbers 419, 420 and 421. Each order reflects that counsel was notified.

The Clerk’s Office closed for business in the old federal courthouse on October 17, 1997 at 2:00 p.m. and reopened for business in the new federal courthouse on October 20, 1997.

On February 6,1998, counsel for the plaintiff wrote the court pursuant to Local Rule 205-2(a) of the United States District Court for the District of Oregon stating that the post-trial motions by defendant Gordon and defendants Burt & Gordon, P.C. and Burt “have not been determined.”

On February 9, 1998, counsel for defendant Gordon wrote the court pursuant to Local Rule 205-2(a) of the United States District Court for the District of Oregon stating that the defendant Gordon had not received a decision on his motion for a new trial.

On February 10, 1998, counsel for defendants Burt & Gordon, P.C. and Burt wrote the court pursuant to Local Rule 205-2(a) of the United States District Court for the District of Oregon stating that the defendants post-trial motions remained under advisement.

On April 9, 1997, counsel for defendant Gordon received a telephone call from counsel for defendant Andrea Bushnell. During the telephone conversation, counsel for Bushnell stated that she had called this court’s clerk, and that she had been informed that the action had been concluded; that the defendant’s post-trial motions had been decided in October, 1997; and that the rulings of the [586]*586court were reflected in district court docket numbers 419, 420 and 421.

Counsel for defendant Gordon reviewed his case pleadings and confirmed that he had not received copies of any orders from this court bearing docket numbers 419, 420 and 421. Counsel for defendant Burt did not receive copies of any orders from this court bearing docket numbers 419, 420 and 421.

On April 20, 1998, defendant Gordon filed the motion of defendant Mark A. Gordon pursuant to FRCP 60(B) to vacate and reenter judgment.

On April 24, 1998, defendants Burt & Gordon, P.C. and Burt filed the motions by defendants Burt & Gordon, P.C. and Robert G. Burt under Fed.R.Civ.P. 60(b)(1) and 60(b)(6) to vacate judgment and re-enter it or, in the alternative under Fed.R.App.P. 4(a), to reopen the time for filing an appeal.

CONTENTIONS OF THE PARTIES

The defendants contend that this court should exercise its discretion to vacate the judgment entered on August 6, 1997 and to re-enter the judgment in order to allow defendants to file a timely appeal. The defendants contend that notice of the court’s October 1, 1997 rulings was not provided to any party; that plaintiff will not be prejudiced by granting the relief sought; and that the defendants promptly moved the court for relief following discovery of the court’s rulings. In addition, the defendants contend that the rulings were made about the time that the federal court was moving to its new building, and that the court failed to respond to the letters submitted to the court pursuant to Local Rule 205-2 in early February of 1998 informing the court that the motions were under advisement. The defendants contend that had the court responded to their letters, they would have learned of the rulings of October 1, 1997, within 180 days of the rulings, and would have secured relief under Fed.R.App.P. 4(a)(6).

The plaintiff contends that this court is without discretion to grant a motion to vacate and re-enter judgment under Fed.R.Civ.P. 60 in order to permit an appeal after the expiration of 180 days from the entry of judgment. The plaintiff contends that the 1991 amendments to the Federal Rules of Civil Procedure specifically address the issue of lack of notice in Fed.R.Civ.P. 77(d) and Fed. R.App.P. 4(a)(d). The plaintiff explains that Fed.R.Civ.P. 77(d) and Fed.R.App.P.

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179 F.R.D. 584, 1998 U.S. Dist. LEXIS 9838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-burt-gordon-pc-ord-1998.