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April 30, 2003


The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge



The complaint in this action was filed on May 13, 1999. Defendant Sea Ripple Maritime, Inc. ("Sea Ripple") filed its answer on July 20, 1999. Defendant Pan Ocean Shipping Co., Ltd. filed its answer and a crossclaim against Sea Ripple on February 24, 2000. On October 1, 2002 the Plaintiff was ORDERED TO SHOW CAUSE by November 1, 2002, why this action should not be dismissed for lack of prosecution. We received no response. Consequently, on December 10, 2002, we directed the Clerk of the Court to enter an order dismissing the action for failure to prosecute.

On January 13, 2003, Plaintiff simultaneously filed a notice of appeal of our December decision as well as a motion in this Court to vacate the December judgment and reinstate the action to our active calendar. Defendant Sea Ripple ("Defendant") filed declarations in opposition to this motion to vacate. For the reasons that follow, Plaintiff's motion to vacate is DENIED.


Rule 60(b) states that "the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . .; or (6) any other reason justifying relief from the operation of the judgment." "Excusable neglect encompasses inadvertence, carelessness, and mistake, and may be found where a party's failure to comply with filing deadlines is attributable to negligence." Fetik v. New York Law School (S.D.N.Y. June 29, 1999), No. 99 CV 7746, 1999 WL 459805, at *4 (internal quotation marks omitted). Courts are not likely, however, to find excusable neglect where there has been abuse by a party. Id.

The determination is "an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. (internal quotation and citation omitted). Those circumstances include "prejudice to the adversary, the length of the delay, the reason for the error, the potential impact on the judicial proceedings, whether it was within the "reasonable control of the movant," and whether the movant acted in good faith." Id. (citation omitted). Notably, where the order from which relief is sought is the result of [c]ounsel's failure to read and obey an unambiguous court rule," counsel's omission is not excusable neglect. Canfield v. Van Atta Buick/GMC Truck, Inc. (2d Cir. 1997) 127 F.3d 248, 251 (citation omitted).

Finally, it is worth noting that a "client is not generally excused from the consequences of his attorney's negligence absent extraordinary circumstances." Cobos v. Adelphi Univ. (E.D.N.Y. 1998) 179 F.R.D. 381, 386. The Second Circuit has "consistently refused to relieve a client of . . . a final judgment entered against him due to the mistake or omission of his attorney by reason of the latter's ignorance of the law or of the rules of the court, or his inability to efficiently manage his caseload." Id. at 386-387.


We begin by noting that Plaintiff has not specified which, among the six possible justifications for relief provided by Federal Rule of Civil Procedure 60(b), it relies upon in requesting vacatur. See FED. R. CIV. P. 60(b). Given the facts as set forth by Plaintiff, we assume it seeks vacatur under subsection 1: mistake, inadvertence, surprise, or excusable neglect. See FED. R. CIV. P. 60(b)(1)

Plaintiffs Memorandum of Law ("PMOL") describes the history of delays that have plagued the case since 1999, while the parties were allegedly engaged in discovery and settlement negotiations. (PMOL at 1-2.) Defendants claim that "Plaintiff has done virtually nothing to prosecute this claim over the past 3 ½ years" and that they "have not received any written or telephonic correspondence from counsel for the Plaintiff over the past 2 years." (Def.'s Decl. in Opp'n to Pl.'s Mot. Purs. to R. 60(b) at ¶¶ 5-6) (hereinafter "Def.'s Opp'n").

According to Plaintiff, these discovery and settlement delays were compounded by the retirement of at least one attorney and the dissolution of at least two firms associated with the representation of Plaintiff. (PMOL at 2-3.) As a result of these professional developments, Plaintiff's counsel of record, Herbert Halberg ("Halberg") relocated three times and affiliated himself with at least two new law firms. (Id. at 3.) Holberg alleges that while he did not inform the Clerk of the Court of this address change, he did register his change of address with the United States Postal Service in order that his mail be forwarded. (Id.) Unfortunately, however, the October 2002 Order to Show Cause was not so forwarded and Holberg claims he never received that Order. (Id.) It is not clear from Plaintiff's filings how he did finally become aware of the disposition of the case.

Plaintiff claims that dismissal of the action is too harsh a sanction. He argues that the case "was one of those admiralty and maritime cases which got lost by all the parties and the court. There was no egregious error, no failure or omission to respond to a court's order and no intentional dilatory tactic by any party hereto." (Id. at 3-4.) While we are extremely tolerant of many of the usual delays that accompany some litigation before this Court, we cannot agree with Plaintiff's characterization of the case.

An attorney's failure to notify the Court of not one but three address changes is indeed an egregious error. In fact, it is a violation of Local Civil Rule 1.3(d) of the Southern District of New York, which provides that "[i]f an attorney who is a member of the bar of this court . . . changes his or her residence or office address, the attorney shall immediately notify the clerk of the court, in addition to serving and filing a notice of change of address in each pending case in which the attorney has appeared." LOCAL CIV. R. 1.3(d). As such, we cannot find that such failure on the part of counsel, taken together with the extreme delay, failure to respond to an Order of this Court, and the potential prejudice to the Defendant*fn1 qualifies as "excusable neglect" for the purposes of Rule 60(b)(1). See Canfield, 127 F.3d at 251 ("[c]ounsel's failure to read and obey an unambiguous court rule," is not excusable neglect) (citation omitted). Indeed, the facts presented by the Plaintiff simply provide further support for our dismissal of the case pursuant to Rule ...

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