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August 3, 2005.


The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Plaintiffs move, pursuant to Fed.R.Civ.P. 60(b), for relief from this court's May 18, 2005 order dismissing this case for failure to prosecute. As plaintiffs have failed to establish excusable neglect or extraordinary circumstances justifying vacatur, and an analysis of the claims in the complaint reveals that this court would grant defendants' summary judgment motion if the dismissal for failure to prosecute were vacated, plaintiffs' motion is denied.

Plaintiffs, nineteen employees of the New York City Transit Authority ("Transit Authority"), move this court to reconsider its order dismissing their complaint for failure to prosecute under Fed.R.Civ.P. 60(b)(1) and (6). This court granted defendants' motion for dismissal on May 18, 2005 as a result of plaintiffs' failure, over a nearly two-year period, to respond to defendants' summary judgment motion or motion to dismiss for failure to prosecute. A brief recitation of plaintiffs' inattention to their case, drawn from the May 18th order, is essential to the following analysis.

  Defendants moved for summary judgment on August 5, 2002. After failing to timely file opposition papers in early September of that year, plaintiffs wrote the court requesting an extension, which was granted. Having failed to present opposition papers by the extended filing date, plaintiffs asked for another extension. Although the court granted this second untimely request for more time, plaintiffs failed to file any papers at the close of that period. Plaintiffs sent two subsequent letters to the court asserting that they had secured defendants' consent for additional extensions, letters that defendants now claim were misrepresentations of their conversations. In July of 2003, defendants filed a motion to dismiss the case for failure to prosecute, to which plaintiffs responded only by asking for yet another extension. Defendants sent several letters to both plaintiffs and the court in the ensuing two years seeking resolution of the pending motions. Receiving no response from plaintiffs, this court granted defendants' motion to dismiss on May 18, 2005. Two days later, plaintiffs filed a request to move for reconsideration with an accompanying affidavit by plaintiffs' counsel indicating several reasons for his failure to pursue this case. Given the nature of that affidavit, this court refused to entertain such a motion unless plaintiffs retained new counsel. In the ensuing weeks, plaintiffs filed a motion for reconsideration*fn1 before this court after filing a notice of appeal of the dismissal to the Second Circuit. I. JURISDICTION

  Plaintiffs have stripped this court of jurisdiction over the instant motion by appealing to the Second Circuit this court's May 18, 2005 dismissal of their complaint for failure to prosecute. Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992). A limited exception exists to the general rule that district courts lose jurisdiction upon appeal of a final judgment. Although a district court may not grant relief from judgment under Rule 60(b) without permission from the Circuit Court, "the district court can entertain and deny the Rule 60(b) motion." Id. (citing Ryan v. United States Line Co., 303 F.2d 430, 434 (2d Cir. 1962) (emphasis in original).

  Further, considerations of judicial efficiency prompt this court to engage in an analysis of plaintiffs' dismissed complaint in order to indicate to the Second Circuit the unlikelihood that plaintiffs would succeed upon remand to this court. Lawrence v. Cohn, No. 90 Civ. 2396, 1992 WL 18801 (S.D.N.Y. Jan. 28, 1992) (citing Litton Systems v. American Tel. & Tel. Co., 746 F.2d 168, 171 n. 4 (2d Cir. 1984) (citing Ryan, 303 F.2d at 434)).


  Plaintiffs seek relief from judgment pursuant to Fed.R.Civ.P. 60(b), which permits a court, in its discretion, to rescind a final order for "(1) mistake, inadvertence, surprise, or excusable neglect," or "(6) any other reason justifying relief from the operation of the judgment." These two subsections are mutually exclusive. United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir. 1971). Thus section "(b)(6) applies only when no other subsection [e.g., (b)(1)] is available." Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986). 1. Rule 60(b)(1)

  The United States Supreme Court has deemed excusable neglect "an elastic concept," identifying four factors which courts should weigh in evaluating a movant's putatively excusable conduct: "1) the danger of prejudice to the [non-moving party], 2) the length of the delay and its potential impact on judicial proceedings, 3) the reason for the delay, including whether it was within the reasonable control of the movant, and 4) whether the movant acted in good faith." Pioneer v. Brunswick, 507 U.S. 380, 392-95 (1993). The Second Circuit stresses that the "third factor — the reason for the delay . . . predominates." Williams v. KFC Nat. Management Co., 391 F.3d 411, 415-416 (2d Cir. 2004); see also Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366-367 (2d Cir. 2003).*fn2

  Plaintiffs' counsel has submitted a self-flagellating declaration asserting that his neglect of his clients' case was caused by events that arose in his personal and professional life during the period following defendants' motion for summary judgment. The Second Circuit, however, regularly refuses to vacate judgments pursuant to Rule 60(b)(1) due to an attorney's "inability to efficiently manage his caseload," whether for personal or professional reasons. United States v. Cirami, 535 F.2d 736, 739 (2d Cir. 1976). Despite counsel's personal circumstances, the neglect of this case is inexcusable given the legal resources available to plaintiffs by other members of the law firm which represented them. Individual counsel attempts to shoulder the entire responsibility for the failure to respond to defendants' motions. However, documents produced to this court by both parties reveal that other attorneys in his firm were actively involved in this litigation. Of thirty-four depositions taken in the case, this attorney was present at only ten; five other attorneys from his law firm variously attended the remaining twenty-four. (Defs.' Br. in Opp. to Mot. for Recons., Ex. T). In July, 2003, another name partner at the law firm sent a letter to this court on behalf of the attorney of record, acknowledging the pending motions for dismissal and summary judgment. (Id., Ex. K). Further, it has been represented that the firm chose, on at least some other firm matters, to develop systems to prevent this kind of neglect and to encourage colleagues to assist each other. ("My office set up a triple-check system to make sure that attorneys scheduled to be at [the Public Employment Relations Board] were present when required . . . Between December 2001 and March 2005 . . . no other scheduling snafus occurred")). Ultimately, it is clear that several attorneys in the law firm worked on and were familiar with this case. Others in the firm were also aware of this attorney's personal problems and that they were affecting his work performance.

  2. Rule 60(b)(6)

  Although counsel's negligence is not excusable under Rule 60(b)(1), gross negligence of attorneys has occasionally served as grounds for relief from judgment under Rule 60(b)(6). Cirami, at 536 F.2d at 740 (citing L.P. Steuart, Inc. v. Matthews, 329 F. 2d 234 (D.C. Cir. 1964)). Relief under this subsection, however, is typically available only where movants present evidence of "`extraordinary circumstances,' or `extreme hardship.'" Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004) (quoting Cirami, 563 F.2d at 32). In fact, in order to constitute "extraordinary circumstances," an attorney's failures "must be so egregious and profound that they amount to the abandonment of the client's case altogether, either through physical disappearance, see Vindigni v. Meyer, 441 F.2d 376 (2d Cir. 1971), or constructive disappearance, see Cirami, 563 F.2d at [377-78]." Id. Additionally, even the gross negligence of an attorney will be imputed to his clients barring evidence of "diligent efforts by [the clients] to induce him to fulfill his duty." Dominguez v. United States, 583 F.2d 615, 618 (2d Cir. 1978); see also Vindigni, 563 F.2d at 377.

  Plaintiffs' attorney has informed the court of a series of personal problems that he argues either excused his neglect or constituted extraordinary circumstances justifying reconsideration of his clients' complaint. Documents produced by both sides in this case, however, reveal that whatever strain the attorney underwent did not prevent him from continuing to practice law and involving himself in community affairs. Although his law practice may genuinely have suffered during the relevant period, his own declarations in support of this motion indicate that he remained active on a number of fronts.*fn3 That he was selective in deciding which areas of his law practice to focus on does not establish an extraordinary circumstance in this case. Although he may have been "unfocused and distracted" during his period of inaction in this case, he remained an active attorney. (Pls.' Reply Decl., ¶ 13(g)).

  The 60(b)(6) analysis also considers whether the plaintiff litigants themselves neglected their lawsuit, and to what extent counsel may have misled them into complacency. The attorney represents that his clients "were unaware of [his] failure to oppose the summary judgment motion and [his] failure to oppose a motion to dismiss, and believed that [they] were simply waiting for a decision from the Court." (Pls.' Reply Decl., ¶ 3). He further claims that "[plaintiff Vernon] Thorpe probably asked me what was going on once a month, and I simply told him `no decision yet.'" (Id.). These assertions to clients do not amount to the kind of affirmative, misleading assurances that lead courts to determine that a plaintiff's obligation to monitor his own litigation was overborne by counsel's deception. See Cirami, 563 F.2d at 34. Of nineteen plaintiffs in this case only one, plaintiff Vernon Thorpe, apparently maintained continuing contact with the attorney and his law firm. (Pls.' Reply Decl., ¶ 3). That other plaintiffs may have chosen Thorpe to serve as their liaison with the law firm did not extinguish their duty to remain aware of the state of their lawsuit, especially over the course of several years. Most revealing of plaintiffs' culpable lapse in attention, however, is plaintiff Thorpe's admission that "shortly after [defendants' summary] judgment motion was filed, I noticed that [the attorney] was less forthcoming and less accessible to me." (Aff. of Vernon Thorpe, Pls.' Reply Decl.). Given Thorpe's acknowledgment that he witnessed his ...

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