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United States District Court, S.D. New York

January 10, 2005.

COMP USA, et al., Defendants.

The opinion of the court was delivered by: KENNETH KARAS, District Judge


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 DENIED.

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.

  I. Background

  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 proper venue.

  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, 2002.)

  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.

  II. Discussion

  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 quotations omitted.)

  "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 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.
Fed.R.Civ.P. 60(b).

  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." Fed.R.Civ.P. 60(b).

  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.

  III. Conclusion

  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 motion.

  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.


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