The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Plaintiff moves for an order, pursuant to Fed.R.Civ.P. 60, vacating a stipulation of discontinuance entered on August 15, 1983. Defendants oppose this motion and move for attorneys' fees pursuant to 42 U.S.C. § 1988. We deny plaintiff's motion and award to defendants those attorneys' fees reasonably incurred in opposing this motion.
Plaintiff brought this civil rights action for damages after an incident on February 19, 1982 in which he was allegedly assaulted, falsely arrested, and, later, maliciously prosecuted by a number of New York City police officers. At the time of his arrest, plaintiff was on his way home from a costume party, dressed in a cowboy outfit with a prop gun. Criminal charges brought against him were dismissed on April 8, 1982. Plaintiff then initiated this action, naming as defendants the City of New York, individual police officers and Centre Firearms Co., Inc., lessor of the prop gun to plaintiff.
According to plaintiff, the stipulation of discontinuance at issue here was intended to apply only to defendant Centre Firearms and not to the City defendants. Plaintiff's version is as follows:
A stipulation of discontinuance was submitted to the court signed by plaintiff's counsel and counsel for Centre Firearms. The court's deputy clerk then called the offices of plaintiff's counsel to inquire whether the other defendants should also have signed the stipulation. Plaintiff's counsel was on vacation and allegedly not consulted, but his secretary, nevertheless, arranged to have the stipulation delivered to counsel for the City defendants for signature and resubmission to the court. Plaintiff's counsel did not learn about the alleged mistake until returning from vacation and now claims that there was never any agreement to discontinue the case against the City defendants.
Counsel for the City defendants responds that, after she filed a motion to dismiss all claims against the City defendants, she did in fa ct have discussions with plaintiff's counsel regarding discontinuance of the entire action. The return date on the motion to dismiss was August 26, 1983, so when the stipulation was presented to her for signature on August 24, she claims that it was perfectly logical for her to sign it. She also points out, and plaintiff admits, that the federal civil rights claims agaainst the City defendants are meritless. In fact, plaintiff agree that they should be dismissed but contends that defendants agreed to a "remand" of the pendent state claims to state court.
The applicable Federal Rule of Civil Procedure, Rule 60, is set forth in the margin.
We note at the outset that the alleged m istake in the stipulation is not the kind of clerical mistake to which Rule 60(a) applies.
It is not a mere error in recording or an oversight, but goes to the disposition of the case itself.
Plaintiff's motion, therefore, is properly considered under Rule 60(b)(1) to which we now turn.
In deciding that plaintiff is not entitled to the relief sought under Rule 60(b)(1), we begin with two undisputed facts. First, plaintiff never responded to the City defendants' motion to dismiss, returnable on August 26, 1983. If plaintiff had no intention of discontinuing the entire action, he should have filed opposing papers to the motion. Second, plaintiff claims that the City defendants agreed to a voluntary dismissal of the federal claims on the condition that the state law claims be transferred to state court, but a stipulation to that effect was not sent to defendants until October 4, 1983, almost six weeks after the August 26 return date. There is, of course, no reason why defense counsel should agree to a stipulation like that in any event since the state statute of limitations has long since run.
In short, it appears that plaintiff's counsel wants to undo his own mistakes. If, as plaintiff's counsel contends, the secretary in his office mistakenly forwarded the stipulation to defense counsel, we cannot understand why counsel made no arrangements to respond to the motion to dismiss by the return date.We also point out to plaintiff's counsel that a federal court only "remands" cases to state court when they are originally filed in state court and improperly removed to federal court. The kind of "remand" he wants simply does not exist.
It is clear that the kind of mistake, neglect, or ignorance of the law attributable to counsel here is not the kind contemplated by Rule 60(b)(1).
It appears, for example, that counsel should have brought this actionn in state court initially within the one-year statute of limitations. This type of erroneous judgment is not a ground for relief under Rule 60(b)(1).
We note finally that relief from the stipulations would not even benefit plaintiff in this lawsuit. Plaintiff admits that the federal civil rights claims are totally meritless. Once those claims are dismissed, the pendent state claims must be dismissed as well.
The state statute of limitations has run, so plaintiff would have no way to pursue the case. We therefore think defendants should be awarded attorneys' fees incurred in opposing this motion, as it is not at all clear what plaintiff hoped to accomplish by it.
Accordingly, plaintiff's motion to vacate the stipulation of discontinuance is denied. Defendants are awarded $500.00 as reasonable attorneys' fees incurred in opposing this motion, and plaintiff is directed ...