United States District Court, S.D. New York
January 10, 2005.
JOSEPH AMOROSI, Plaintiff,
COMP USA, et al., Defendants.
The opinion of the court was delivered by: KENNETH KARAS, District Judge
OPINION AND ORDER
This case is before the Court on Plaintiff's motion to vacate
an order of dismissal for failure to prosecute. Plaintiff's
motion is late in coming and does not provide evidence which
meets Plaintiff's burden to obtain relief. Accordingly, after
reviewing Plaintiff's submissions, the record, and the applicable
law, and for the reasons that follow, Plaintiff's motion is
Plaintiff has been represented throughout this case by Richard
J. Zeitler, and the Court is disturbed by Mr. Zeitler's conduct
in this case. Initially, the Court doubts whether Mr. Zeitler is
admitted to practice in this Court and remains in good standing
in New Jersey.*fn1 Further, Plaintiff's counsel inexplicably waited approximately
two years to move to vacate the dismissal, providing arguments
that there was confusion over an alleged hearing with the Court
and that the files related to this case were "mislaid" in
counsel's office which are insufficient to excuse the motion's
untimeliness and which only underscore counsel's mishandling of
this matter. Finally, the record in this case discloses that Mr.
Zeitler has done next to nothing to move this case along since it
was filed on April 20, 2001, repeatedly ignoring court orders,
deadlines, and telephone inquiries. Indeed, it appears that the
Defendants in this matter have yet to be properly served.
This diversity case arises from injuries Plaintiff allegedly
sustained when the ceiling of a Comp USA store in Manhattan
collapsed. Plaintiff contends that the collapse, which allegedly
occurred on April 4, 1999, was caused by the negligence of
Defendant Comp USA and of Defendants Ameribuild Construction
Management Inc. and Architectural Assoc., Inc., which allegedly
designed and/or constructed the ceiling.
None of the Defendants has entered an appearance in this case.
Plaintiff apparently had difficulty serving Defendants with
process until April of this year, and even then the Court doubts
that the attempted service was sufficient, as discussed below.
Plaintiff originally filed this case on April 20, 2001 in the
United States District Court for the District of New Jersey. On
May 14, 2001, that court transferred this case, sua sponte, to
this Court under 28 U.S.C. § 1406 because New Jersey was not a
On January 4, 2002, the Honorable John S. Martin, Jr., United
States District Judge, dismissed the case for Plaintiff's failure
to prosecute. (See Order signed Jan. 4, 2002.) Judge Martin noted that Plaintiff's counsel did not respond to
several deadlines to report on the status of this case, did not
return the Court's telephone messages, and did not appear for a
hearing on the Court's order to show cause why the case should
not be dismissed. (See Orders signed Dec. 20, 2001 & Jan. 4,
Seven months after the case was dismissed, Plaintiff's counsel
requested by letter a return date to file a motion to reopen the
case. On August 8, 2002, Judge Martin ordered that Plaintiff may
file a motion to set aside the dismissal without a return date
from the Court, and that the Court would consider the motion upon
submission. (See Order signed Aug. 8, 2002.) Nothing was filed
for the next 17 months.
On January 12, 2004, Plaintiff moved to set aside the
dismissal. In the papers supporting the motion, Mr. Zeitler first
contends that he was "told to be before the Court the Court
[sic] on September 13, 2002 for a conference, presumably on the
issue of reinstatement." (See Certification of Richard J.
Zeitler dated Dec. 31, 2003 ¶ 11 ("Zeitler Cert.").) Mr. Zeitler
asserts that William W. Murphy, the attorney he sent to appear at
the conference, was
told that the case had been re-assigned to Magistrate
Ronald L. Allen. He went to Judge Allen and spoke to
his staff. He was told that Judge Allen had not yet
received it firm [sic] Judge Martin. The situation
was somewhat confused. Mr. Murphy returned to our
firm without having conferenced the case.
(Zeitler Cert. ¶ 13.)*fn2
Second, Mr. Zeitler claims that
the files related to this matter were "mislaid" in his office for
a number of months. (Zeitler Cert. ¶ 14.)
The Court has difficulty understanding Mr. Zeitler's assertions
regarding the alleged conference with Judge Martin. Nothing in the record,
including the docket sheet and Judge Martin's Order signed on
August 8, 2002, indicates that a conference was scheduled for
that date. In fact, Mr. Murphy acknowledges that there was no
record that a conference was scheduled, admitting that
"[i]nasmuch asthere [sic] was no notice from the Court in the
file advising me where [the conference] was to be held, I assumed
that it was before Judge John S. Martin." (Attachment L to
Zeitler Cert.) More significantly, no one named Ronald L. Allen
is a Magistrate Judge of this Court. It is likely, however, that
Mr. Zeitler intended to refer to the Honorable Ronald L. Ellis,
the Magistrate Judge designated to this case. These befuddlements
aside, it is unclear to the Court why an alleged mistake over a
supposed conference should have kept Mr. Zeitler from promptly
seeking relief from the dismissal. The Court notes that Mr.
Zeitler provided no evidence that he took any steps after the
conference date, such as the simple and effortless step of
calling the Court, to resolve the confusion.
This matter was reassigned to this Court for all purposes on
November 17, 2004.
A. Applicable Standards
Motions to set a aside a dismissal for failure to prosecute are
properly brought under Rule 60(b) of the Federal Rules of Civil
Procedure, which provides that "[o]n motion and upon such terms
as are just, the court may relieve a party . . . from a final
judgment, order, or proceeding." Fed.R.Civ.P. 60(b). "Properly
applied, Rule 60(b) strikes a balance between serving the ends of
justice and preserving the finality of judgments." Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986). "In other words it should
be broadly construed to do substantial justice, yet final
judgments should not be lightly reopened." Id. (citations and
"Motions under Rule 60(b) are addressed to the sound discretion
of the district court and are generally granted only upon a
showing of exceptional circumstances." Mendell v. Gollust,
909 F.2d 724, 731 (2d Cir. 1990) (citing Nemaizer, 793 F.2d at 61).
The movant must adduce "highly convincing material" in support of
the motion. United States v. Cirami, 563 F.2d 26, 33 (2d Cir.
1977) ("Cirami II").
Rule 60(b) provides six grounds for relief:
(1) mistake, inadvertence, surprise, or excusable
(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.
The Court has reviewed Plaintiff's submissions and the record
in an attempt to determine whether Plaintiff can meet his burden
under Rule 60(b) to obtain relief. The Court notes that
Plaintiff, in papers submitted by Mr. Zeitler, provides little in
the way of argument and evidence to support relief; in fact,
Plaintiff invokes none of the subsections of Rule 60, nor does he
cite any other authority in support of the motion. Nonetheless,
the Court finds that only subsections (1) and (6) are possibly relevant here.
B. Rule 60(b)(1)
Subsection (1) provides relief due to "mistake, inadvertence,
surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1).
However, this subsection is unavailable to Plaintiff because a
motion under it must be asserted "not more than one year after
the judgment, order, or proceeding was entered or taken."
Fed.R.Civ.P. 60(b). Plaintiff filed the motion on January 12, 2004,
approximately two years after Judge Martin dismissed the case.
Even if the motion was timely under Rule 60(b)(1), however, the
Court would not grant relief. 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.,
127 F.3d 248, 251 (2d Cir. 1997). The Second Circuit has "consistently
refused to relieve a client of the burdens 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." United States v. Cirami, 535 F.2d 736, 739 (2d Cir.
1976) ("Cirami I"). While "[e]xcusable neglect encompasses
`inadvertance, carelessness, and mistake,' and may be found where
a party's failure to comply with filing deadlines is attributable
to negligence," it will not be found "where there has been an
abuse by a party." Fetik v. New York Law Sch., No. 99 CV 7746,
1999 WL 459805, at *4 (S.D.N.Y. June 29, 1999) (quoting
Canfield, 127 F.3d at 250). In the end, the Court must make an
equitable determination, which takes account of the "`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.'" Stemcor USA, Inc. v. Sea Ripple Mar., Inc., 99
Civ. 3530, 2003 U.S. Dist. LEXIS 7896, at *3 (S.D.N.Y. May 9,
2003) (additional internal quotations omitted) (quoting Fetik,
1999 WL 459805, at *4).
The Court finds that Plaintiff has put forward no evidence to
show why Mr. Zeitler's neglect of Plaintiff's case was excusable.
What evidence Mr. Zeitler has adduced, however, only emphasizes
that he consistently failed to obey the orders and meet deadlines
issued by Judge Martin. For example, Mr. Zeitler failed to submit
a status report letter by December 14, 2001, as he was ordered to
by Judge Martin. (See Order signed Dec. 20, 2001.) Mr. Zeitler
also failed to respond to the Court's telephone messages (see
id.), and to respond or appear for the Court's order to show
cause as to why the case should not be dismissed (see Order
signed Jan. 4, 2002). Because Mr. Zeitler has not even attempted
to explain this conduct, the Court finds that Plaintiff is not
entitled to relief under subsection (1).
C. Rule 60(b)(6)
Subsection (6) provides relief "for any other reason."
Fed.R.Civ.P. 60(b). Relief under this subsection may be proper when the
movant has shown the existence of "extraordinary circumstances
justifying relief" and "when the judgment may work an extreme and
undue hardship." Nemaizer, 793 F.2d at 63. A motion under
subsection (6) must be made within a "reasonable time."
Putting aside the timeliness issue for now, the Court finds
that Plaintiff is not entitled to relief under subsection (6) for
Mr. Zeitler's neglect. Relief based on neglect is generally
available only under subsection (1). See Grabois v. Dura Erect
Corp., 981 F. Supp. 295, 298 (S.D.N.Y. 1997). Litigants may not
circumvent the one-year limitations period associated with subsection (1) by seeking relief for neglect
under subsection (6). Id.
Nonetheless, relief under subsection (6) may be warranted in
extraordinary circumstances involving neglect. See, e.g.,
Klapprott v. Unites States, 335 U.S. 601, 613 (1949) ("And of
course, the one-year limitation [under subsection (1)] would
control if no more than `neglect' was disclosed by the
petition. . . . But petitioner's allegations set up an
extraordinary situation which cannot fairly or logically be
classified as mere `neglect' on his part.").
In this Circuit, an attorney's negligence alone is not a basis
for relief under Rule 60(b)(6). See Cirami I,
535 F.2d at 740-41. But the Second Circuit has held that a litigant may be
entitled to relief under subsection (6) where the neglect of an
attorney results from mental illness or other severe personal
problem. Cirami II, 563 F.2d at 34; see also P.T. Busana
Idaman Nurani v. Marissa, 151 F.R.D. 32, 34-35 (S.D.N.Y. 1993)
("Nevertheless, the Second Circuit has held that an attorney's
mental illness can constitute an `extraordinary circumstance'
justifying relief under Rule 60(b)(6)."); Ituarte v. Chevrolet
Motor Div., No. 86 Civ. 2843, 1989 WL 10562, at *4 (E.D.N.Y.
Feb. 2, 1989) ("An attorney's mental state can form the basis for
Rule 60(b)(6) relief, even in the absence of medical evidence.").
In such unusual instances, relief under Rule 60(b)(6) may be
granted where there was "the possibly unique fact of what we may
term the `constructive disappearance' of defendants' attorney,
who was allegedly suffering from a psychological disorder which
led him to neglect almost completely his clients' business while
at the same time assuring them that he was attending to it, and
who had made himself unavailable even to the trial judge."
Cirami II, 563 F.2d at 34.
In each of the cases referenced above, the party seeking relief
under Rule 60(b)(6) or their counsel provided some evidence of
the attorney's mental illness. See Cirami II, 563 F.2d at 31 (affidavits and letters regarding counsel's mental
illness); P.T. Busana Idaman Nurani, 151 F.R.D. at 35
(affidavits from counsel and her psychiatrist regarding counsel's
mental condition); Ituarte, 1989 WL 10562, at *2-*3 (letter
from attorney's psychoanalyst). In this case, however, Plaintiff
has not provided the Court with any evidence regarding
extraordinary circumstances that would have prevented Mr. Zeitler
from pursuing the case, and therefore the Court finds that
Plaintiff is not entitled to relief under this doctrine.
Plaintiff argues that he "will suffer serious prejudice"
because "[t]he statute of limitations has already run." (Zeitler
Cert. ¶ 16.) Plaintiff further argues that defendants would not
suffer prejudice if the dismissal were vacated. (Id.) Plaintiff
cites no authority to support these arguments.
The Court finds that the running of the limitations period,
alone, does not entitle Plaintiff to relief under Rule 60(b)(6).
See Wager Spray Tech Corp. v. Wolf, 113 F.R.D. 50, 53 (S.D.N.Y.
1986) ("The effect of a time bar without more does not constitute
the basis for 60(b)(6) relief."). Plaintiff has offered no excuse
as to why he was not diligent in pursuing this matter, and
therefore the Court finds that he has not met his burden under
Rule 60(b)(6) to show "extraordinary circumstances" and that he
has suffered an "extreme and undue hardship."
Furthermore, the Court rejects Plaintiffs' contention that
Defendants would suffer no prejudice here. The very fact that the
limitations period has run while Plaintiff has failed to duly
prosecute this case indicates that Defendants would be prejudiced
in defending Plaintiff's potentially stale claims. "Statutes of
limitation, like the equitable doctrine of laches, in their
conclusive effects are designed to promote justice by preventing
surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Tels. v. Ry. Express
Agency, Inc., 321 U.S. 342, 348-49 (1944). Here, over five
years have passed since Plaintiff was allegedly injured (it will
be six years in April 2005). There is no indication that any
meaningful steps have been taken by Plaintiff towards the
resolution of this case on its merits since it was filed in 2001;
in fact, it appears that the Defendants have never been properly
served. Accordingly, the Court finds that to reopen this case now
would prejudice Defendants.
In turning to the timing of Plaintiff's motion, the Court finds
that Plaintiff did not make the motion within a reasonable period
as required by the rule. The Court is aware that there is no set
time for making a motion under subsection (6) and that "[w]hat is
a `reasonable time' is a question to be answered in light of all
the circumstances of the case." Cirami II, 563 F.2d at 32. But
Plaintiff delayed making the instant motion for two years,
asserting only that Mr. Zeitler and his colleagues were confused
about a court conference and that case files were "mislaid" in
Mr. Zeitler's office. Mr. Zeitler's delay here cannot be
considered "reasonable" under any standard. Accordingly, the
Court is finds that the motion is untimely.
Finally, the Court finds that Plaintiff's motion must be denied
based on the equities of this case. Courts evaluating Rule 60(b)
motions must balance the competing interests of obtaining
finality, on the one hand, and deciding cases on their merits, on
the other. Cirami II, 563 F.2d at 33. While the Court might
prefer to adjudicate any case on the merits, it notes that the
running of the limitations period and Plaintiff's apparent
failure to serve Defendants within that period means that
Plaintiff's claims very likely are barred.
This Court applies state-law limitations periods to state-law
causes of action brought under the Court's diversity
jurisdiction. Quinn v. Thomas H. Lee Co., 61 F. Supp. 2d 13, 21-22 (S.D.N.Y. 1999). State law also determines when an action
is commenced for limitations purposes. See Morse v. Elmira
Country Club, 752 F.2d 35, 37-38 (2d Cir. 1984). In New York,
the statute of limitations for personal injury caused by
negligence is three years. N.Y.C.P.L.R. § 214(5); Sawyer v.
Wight, 196 F. Supp. 2d 220, 228 (E.D.N.Y. 2002). Under New York
law, the running of the limitations period is tolled only by
service of process, although the Federal Rules of Civil Procedure
govern the proper method of effective service. See Morse,
752 F.2d at 38.
Plaintiff contends that he was injured due to Defendants'
negligence on April 4, 1999. (Compl. ¶¶ 10-14.) Thus, the
three-year limitations period ran from that date and concluded in
April 2002. No evidence appears in the record that any of the
Defendants was properly served with process within that time. In
fact, it appears that Plaintiff did not serve process on
Defendants prior to April 2, 2004. (See Returns of Service
dated Apr. 2, 2004 (Docket Entries 5-7).)*fn3 Zeitler's own
statements appear to confirm that process was not served on at
least two Defendants prior to April 2004: Zeitler states that
"[i]t appears that we had difficulty serving the defendants, Comp
USA and Ameribuild Construction Management. We have hired the
Guaranteed Subpoena Service to locate and serve the defendants."
(Zeitler Cert. ¶ 15.) Accordingly, it is likely that Defendants
would have valid statute of limitations defenses if this case is
reopened. While the Court would ordinarily seek to adjudicate Plaintiff's
claims on their merits, it appears that such an adjudication
would not be possible in this case because of the running of the
limitations period. Thus, the Court believes that Plaintiff's
motion should be denied in the interest of finality.
The Court has determined that Plaintiff has failed to meet his
burden under subsections (1) and (6) of Rule 60(b), and that the
motion was not timely made under either of those provisions. The
Court also finds that Plaintiff's claims are likely barred by the
statute of limitations and therefore equitable considerations
call for denying relief. The Court accordingly DENIES Plaintiff's
The Court is not, however, unsympathetic to Plaintiff's
situation and is greatly disappointed by Mr. Zeitler's handling
of this case. This Court may refer cases to the Chief Judge for
possible disciplinary proceedings before the Committee on
Grievances under Local Rule 1.5(f) where it appears as if an
attorney has appeared at the bar of this Court without permission
to do so, has been disciplined by a court in another
jurisdiction, and/or has violated the New York State Lawyer's
Code of Professional Responsibility. See Local Rule 1.5(b)(2),
(5) & (6). The Court doubts whether Mr. Zeitler is admitted to
practice in this Court, is in good standing to practice in New
Jersey, and has handled this case in a manner consistent with his
ethical and professional obligations to his client. The Court
will therefore order Mr. Zeitler to appear and show cause as to
why this case should not be referred to the Chief Judge for
possible disciplinary proceedings under Local Rule 1.5(f).
Accordingly, it is hereby ORDERED that plaintiff's motion (Docket No. 8) to set aside the
dismissal for failure to prosecute is DENIED. It is further
ORDERED that counsel for Plaintiff, Richard J. Zeitler, shall
appear at 10:30 am on January 27, 2005, in courtroom 21D, 500
Pearl Street, New York, New York, to show cause why this case
should not be referred under Local Rule 1.5(f) to the Chief Judge
for possible disciplinary proceedings. It is further
ORDERED that Mr. Zeitler will serve a copy of this opinion and
order on his client and shall file with the Court an affidavit of
service indicating that he has done so by January 27, 2005.
ORDERED that this case remains CLOSED.