Robert Lepkowski v. United States Department of the Treasury

804 F.2d 1310, 256 U.S. App. D.C. 281, 6 Fed. R. Serv. 3d 504, 1986 U.S. App. LEXIS 33421

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 14, 1986
• Docket: 85-5867
• Status: Published

Opinions

STARR, Circuit Judge:

This is an appeal from the District Court’s denial of a motion for reconsideration sought under Rule 60(b)(1) of the Federal Rules of Civil Procedure. The underlying action had been dismissed for protracted failure to file an opposition to a motion to dismiss filed by the Department of Treasury. Attorneys for Mr. Lepkowski argued before the District Court that their failure to file a timely response to a motion to dismiss was “excusable neglect” within the meaning of Rule 60(b).¹ The District Court was unpersuaded that counsel’s undisputed neglect was, in fact, excusable. As we may review the trial court’s Rule 60(b) determination only for abuse of discretion, Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978), this court cannot lightly overturn that decision.² As no substantial reason for reversal has been advanced, we are constrained on the record before us to affirm.

Mr. Lepkowski’s complaint under the Privacy Act, 5 U.S.C. § 552 (1982), was filed in September 1984 by his attorney of record, Jack B. Solerwitz, in the United States District Court for the District of Columbia. Mr. Solerwitz’s principal law offices, as we understand from his various filings, are located in Mineóla, New York. In November 1984, the Government moved to dismiss the complaint for want of subject matter jurisdiction based upon the applicable statute of limitations and for failure to state a claim for relief under the Privacy Act.

Rule l-9(d) of the Local Rules of the District Court requires that an opposition to a motion to dismiss be filed within ten days; the Rule further provides that “[i]f such opposing statement is not filed within the prescribed time, the court may treat the motion as conceded.” The opposition was due in early December 1984, yet as confirmed by the testimony of Mr. Solerwitz’s associate, a timely response was never filed or served. Hearing Transcript at 4 (Feb. 27, 1985).

Some time after the due date, although ultimately to no avail, the District Judge’s law clerk telephoned Mr. Solerwitz’s law offices to inquire about the matter. According to the testimony of Mr. Solerwitz’s associate, he and Mr. Solerwitz (the sole attorney of record) drafted another opposition for the latter’s signature, which was then mailed. Id. However, neither the court nor opposing counsel received that document.

A number of telephone conversations between the Clerk’s Office of the District Court and Mr. Solerwitz’s office over the next two months failed to produce the long-awaited opposition. Id. at 2. On January 29, 1985, again prompted by the Clerk of the Court, Mr. Solerwitz’s associate either “redrafted,” id. at 5, or “ran off,” id. at 2, yet another copy of the opposition for Mr. Solerwitz’s signature. Again, neither court nor counsel received the elusive document.

The District Court finally set the motion for hearing at a status conference on February 27, 1985, three months after the motion to dismiss had been filed. Mr. Solerwitz’s associate attended the status conference,³ with a copy of the unfiled January 29th opposition and certificate of service (dated Jan. 30,1985) in hand, which he then personally furnished to opposing counsel. The attorney failed, however, to file the opposition with the District Court. No opposition ever having been received, no explanation for the delay ever having been provided, and no tenable defense to the statute of limitations defense having been interposed, the District Court treated the motion to dismiss as conceded under Local Rule l-9(d) and dismissed the complaint with prejudice. Order, Civ. No. 84-2964 (Feb. 27, 1985).

In mid-April 1985, Mr. Solerwitz filed a motion for reconsideration pursuant to Rule 60(b), contending that his failure to file an opposition had been “unintentional and inexplicable,” Motion to Reconsider at 10 (Apr. 16, 1985), the result of “law office failure.” Id. at 6. This motion was heard in June 1985. Although Mr. Solerwitz was himself a member of the District Court bar, the firm chose not to send one of its own attorneys to the hearing, but instead retained local counsel in the District of Columbia to argue the motion. The local attorney offered argument on the underlying merits of Mr. Lepkowski’s cause of action, Transcript at 5 (June 28, 1985), and on the reasons for the post-dismissal delay in seeking reconsideration, id. at 6, but never advanced any explanation for Mr. Solerwitz’s neglect, as sole counsel of record, to file any response to the dismissal motion, other than to observe that “[h]e is a busy lawyer, who had an associate who was assigned to the case.” Id. at 6.

This continuing course of conduct has nowhere been justified in the record. Mr. Solerwitz describes his failure to respond to a motion to dismiss his client’s complaint as merely an “irregular presentation,” Motion to Reconsider at 11. But, in truth, it was no presentation at all. Mr. Solerwitz has never, to this day, filed an opposition with the District Cóurt; it appears in the record as an appendix to the Motion for Reconsideration. Although counsel was aware of his own default throughout the entire period, and indeed received repeated notice to that effect from the court, he failed to exert the minimal effort which would have cured his omission. Mr. Solerwitz readily concedes that the failure to respond was strictly due to the neglect of his office, yet he claims that his lack of attention in this matter was excusable. The only “excuse” offered, however, has been the reiteration of the protracted derelictions of counsel. Not a word of explanation nor a justification for the manifest negligence in this chroniele of events has been forthcoming. Mr. Solerwitz does indeed go to great lengths to explain why the Motion to Reconsider was not unduly delayed; this, however, is scarcely relevant to the point at hand and cannot do service as a justification for the failure to respond in the underlying action.

On this record, we are unable to say that the District Court’s denial of the Rule 60(b) motion rose to the level of an abuse of discretion. It was well within the bounds of the court’s permissible discretion to find that Mr. Lepkowski’s counsel had riot even attempted to demonstrate that his dilatory failings were the product not of mere neglect but, rather, excusable neglect, for which his client should not be penalized.

In a recent decision, Shea v. Donohoe Construction Co., 795 F.2d 1071 (D.C.Cir. 1986), this court has had occasion to analyze decisions in which excusable neglect was raised as the basis of either a direct appeal or a Rule 60(b) motion for reinstatement. Unlike Shea, this is not a case in which dismissal reflected an exercise of the court’s inherent power to control its docket. See also Instantwhip v. Aeration Processes, Inc., 797 F.2d 1093 (D.C.Cir.1986) (dismissal at pretrial conference was improper discovery sanction; no violation of a court rule or court order). Rather, a neutral rule of general application required a response to a motion within ten days. Dismissal under such a neutral rule is by no means an ad hoc sanction for misconduct; in such situations, violation of the rule itself indicates prejudice to an already overburdened system of litigation.

In this case, the Government’s motion to dismiss challenged the very timeliness of Mr. Lepkowski’s complaint. The Local Rule gave notice to the world that failure to respond within the prescribed time could be treated by the trial court as a concession of the motion. Moreover, as we have seen, the District Court did not act precipitously, but to the contrary, took steps to ensure that the litigation process could get back on track, repeatedly attempting to pry out an opposition to the motion. Through his continued silence, Mr. Solerwitz conceded this legal issue. In pursuing reopening of the judgment, no showing was made that the client was misled by counsel as to the status of his case or even that he was unaware of his counsel’s action. Jackson v. Washington Monthly Co., 569 F.2d 119, 122 & nn. 12, 16, 18 (D.C.Cir.1977).

Finally, motions for relief under Rule 60(b) are not to be granted unless the movant can demonstrate a meritorious claim or defense; we cannot escape the fact that the complaint and the proposed opposition were insufficient as a matter of law to defeat the motion on the statute of limitations ground.⁴ Under these circumstances, we cannot say that the District Court abused its discretion in denying relief from judgment.

Our concurring colleague is troubled that our analysis embodies a form of mechanical jurisprudence which exalts the Local Rule to a role of unduly dispositive preeminence. We seek to allay these concerns for we have no such intent. To the contrary, we emphatically do not countenance the rigid imposition of the sanctions of dismissal, as an automatic or reflexive response to the violation of a neutral rule of general application. Indeed, we have carefully canvassed the entire record of this case and reviewed the totality of the circumstances leading up to the District Court’s dismissal. See supra at 1311-12. It is based upon that comprehensive review, pursuant to an abuse of discretion standard, that we have arrived at the judgment that the District Judge acted appropriately under the circumstances.

Nor do we take issue with the formidable body of case law so meticulously elaborated by our colleague.⁵ The burden of decisional law, however, is that each case must be analyzed on its own merits under an abuse of discretion standard. That is precisely what we have sought to do here.

For the foregoing reasons, the judgment of the District Court is

Affirmed.

1 . Rule 60(b) of the Federal Rules of Civil Procedure provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

2 . The order of dismissal on the merits, rendered on February 27, 1985, is not before us for review. That order was never appealed, and post-judgment motions under Rule 60(b) do not toll the time for appeal of the underlying judgment. Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7. Moreover, the appeal of a Rule 60(b) disposition "does not bring up the underlying judgment for review." Id.; Hodgson v. United Mine Workers, 473 F.2d 118, 124 n. 28 (D.C.Cir.1972).

3 . Despite the local rules governing appearances before the District Court, Mr. Solerwitz’s associate was not a member of the bar of the court and did not seek admission pro hoc vice Local rules also require lawyers appearing before the court to have a local office; Mr. Solerwitz used a local address in signing the complaint, but both he and his associate practiced in New York.

4 . Although no opposition had been filed, the District Court did entertain a brief argument on the merits by Government counsel which accurately summarized Mr. Lepkowski's response to the statute of limitations challenge. See Hearing Transcript at 5-6 (Feb. 27, 1985). The flaw in the proposed, unfiled opposition was that it did not set forth facts (or support any facts by affidavits or other material) as to when Mr. Lepkowski in fact received a letter from the Department of Treasury dated September 14, 1982, which at the very latest, put him on notice of any cause of action that he might have.

5 . Our colleague emphasizes two cases from this circuit, which in our view, are entirely compatible with our totality-of-the-circumstances approach. In Bibeau v. Northwest Airlines, 429 F.2d 212 (D.C.Cir.1970), for example, the court in overturning the District Court dismissal was influenced by the considerable trial preparations that had already been completed; that the dismissed plaintiffs were minor children; and, most important, that the rule permitting dismissal for want of prosecution required notice to the parties, yet such notice was never given. Id. at 213. There was thus a violation by the trial court of its own rule upon which the dismissal was purportedly based. Compare Sheaffer v. Warehouse Employees Union, Local No. 730, 408 F.2d 204, 206 (D.C.Cir.) (dismissal upheld "in view of the long history of procedural ineptness and delay” and violations of local rules), cert. denied 395 U.S. 934, 89 S.Ct. 1996, 23 L.Ed.2d 449 (1969). As the Sheaffer court, speaking through Judge Tamm, indicated, we are to examine whether the trial judge’s action was “based upon the particular history of the case.” Id at 206. That is precisely what we have done in the case at hand.

The richness of the case law from other circuits attests eloquently to the fact-specific nature of the appellate review function. Our colleague emphasizes the Fifth Circuit’s decision in Ramsey v. Signal Delivery Service, 631 F.2d 1210 (1980), as “strikingly similar to.the one now before us.” Concurring Opinion at 1316. But Ramsey did not involve, as here, the painstaking efforts undertaken by the District Court to obtain a responsive filing from the plaintiffs counsel in order to bring the litigation to a point ripe for resolution. From all that appears in Ramseys abbreviated, one-paragraph description of the pertinent facts, 631 F.2d at 1214, the trial judge employed the rigidly mechanical approach that our concurring colleague rightly denounces. In Boughner v. Secretary of HEW, 572 F.2d 976 (3rd Cir.1978), on the other hand, an elaborate showing was made that the prior counsel in the case had failed to file responsive pleadings in 52 similar cases (involving claims for benefits under the Federal Coal Mine Health and Safety Act). That showing, the Third Circuit found, was “sufficiently exceptional and extraordinary to mandate relief.” Id. at 978. In stark contrast, no such showing has ever been attempted, much less made, in the case at hand. Witt v. United States, 681 F.2d 1144 (9th Cir. 1982), likewise invoked by our brother, involved a pro se litigant whose case was dismissed for failure to file a memorandum of points and authorities in opposition to the defendant’s motion to dismiss. Wifi's pertinent facts, as in Boughner, are set forth in the space of a bare-bones, solitary paragraph. Nonetheless, from what appears in that skeletal rendition of facts, there was in Witt no indication whatever that the District Court, as here, sought to elicit the required filing from the litigant. Moreover, it appears that the pro se litigant’s legal position had been fully set forth in the complaint, itself, thereby suggesting that the District Court was reflexively enforcing the Local Rule for its own sake, rather than to promote the ends of justice. Needless to say, such unthinking, blind enforcement could, we believe, work an abuse of discretion. In this case, of course, Lepkowski filed no such statement of position; what is more, his unfiled opposition is so lacking in persuasive force that our colleague is willing to opine that "Lepkowski’s claim has little or no chance of surviving the dismissed-motion's objection that it became time-barred.” Concurring Opinion at 1321. The fact of the weakness of Lepkowski's position on the statute of limitations defense, we again observe, see supra note 4, was brought before the District Court during the course of the final hearing. That fact was thus part of the totality of the circumstances that moved the District Court to dismiss the case, a result which our colleague, like we, would sustain.

5 . Id. at 1313.