The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge
Plaintiff Bruno Blazina ("Blazina") brought this action, pursuant to 42 U.S.C. § 1983. On October 20, 2008, the Court granted the defendant's Fed. R. Civ. P. 41(b) motion to dismiss the action, for failure to prosecute, as the plaintiff's counsel, Joanne Dwyer ("Dwyer"), did not arrive timely for the commencement of the parties' trial. On October 28, 2008, the plaintiff moved, pursuant to Fed. R. Civ. P. 60, to set aside the judgment. The plaintiff's motion, and the defendant's opposition to it, are addressed below.
In January 2006, the plaintiff filed a complaint alleging, inter alia, Port Authority of New York and New Jersey ("PANYNJ") Police Officer Michael Kostelnik ("Kostelnik" or "the defendant"), violated rights secured to him by the Fourth and Fourteenth Amendments to the Constitution, when Kostelnik caused him to be arrested wrongfully and prosecuted maliciously.*fn1
Pattern of Requests for Extensions by Dwyer
While this action was pending, the following requests for extensions of time were made by Dwyer: (1) on September 11, 2006, Dwyer requested a 90-day extension of the deadline set for the parties to complete fact discovery. This request was granted, and the deadline was extended to March 14, 2007; (2) on March 13, 2007, Dwyer sought an additional extension of the fact discovery deadline, to July 13, 2007--to allow her to obtain Blazina's medical records, depose a non-party witness, and "pursue further discovery"--which was granted; (3) at a September 17, 2007 pretrial conference, Dwyer requested an extension of time to respond to the defendant's summary judgment motion. The request was granted, and the time was enlarged, to October 9, 2007; (4) on October 9, 2007, Dwyer requested a second extension to file a response to the defendant's summary judgment motion, which was granted to October 12, 2007; (5) on October 15, 2007, Dwyer requested a third extension of time to file a response to the defendant's summary judgment motion, which was granted to October 19, 2007; (6) on October 19, 2007, Dwyer made a fourth extension request, asking that she be allowed to file her response to the defendant's motion for summary judgment "a short time after midnight on October 19, 2007," which was granted; (7) on May 12, 2008, Dwyer requested a one-week extension to submit a joint pre-trial order, which was granted; (8) on May 20, 2008, Dwyer requested an additional two-week extension--to June 3, 2008--to submit a joint pre-trial order, and Dwyer was granted an extension to May 23, 2008; (9) on May 23, 2008, Dwyer requested either that she be allowed to submit a "separate" joint pre-trial order, that is, a joint pretrial order prepared without collaborating with the defendant, or that the deadline for submission of a joint pre-trial order be extended to May 30, 2008; the latter request was granted; (10) on July 14, 2008, the plaintiff moved for an extension of time to file and serve material pertinent to the Court's gatekeeping responsibility respecting opinion trial testimony, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). The request was granted, and the deadline was extended to August 4, 2008; (11) on August 4, 2008, Dwyer requested an additional extension, to September 4, 2008, to file the plaintiff's Daubert submission(s), and this request was denied because the Court would not have had adequate time, prior to the commencement of the trial, to consider the plaintiff's Daubert submission(s); and (12) on August 21, 2008, Dwyer requested an extension of time--from August 21, 2008, to September 3, 2008--to respond to the defendant's motion in limine, and this request was denied, since this extension would not have allowed the Court adequate time, prior to the commencement of the trial, to consider and resolve the motion in limine.
In addition, after failing to submit any Daubert material, despite her request for two extensions of time to file such material, on October 15, 2008, Dwyer submitted a letter to the Court, noting that Dr. Anie Kalayjian was Blazina's "treating psychotherapist," and that the plaintiff intended to have Dr. Kalayjian appear as a trial witness and testify about the "'talk therapy' that she engaged in with the plaintiff." Enclosed with this letter was a copy of Dr. Kalayjian's curriculum vitae. On October 17, 2008, the Court found that, based upon the above-referenced letter, "[t]alk therapy" appeared "to be a matter beyond the ken of the persons who" would likely serve as jurors at the trial. Therefore, "specialized knowledge imparted by Dr. Kalayjian would be needed in order for jurors to understand the evidence the plaintiff would elicit from her at trial," and, thus, a timely Daubert submission should have been made for a determination of the admissibility of Dr. Kalayjian's testimony. Since the plaintiff did not proffer a Daubert submission timely, the Court ruled the plaintiff could not elicit evidence regarding "talk therapy" from Dr. Kalayjian at the trial.
Scheduling and Commencement of the Trial
On July 7, 2008, at the final pretrial conference, the Court advised the parties the trial for this action would begin on October 20, 2008, at 10:00 a.m. On July 15, 2008, the Court filed an order memorializing the date on and the time at which the trial of the action would commence: October 20, 2008, at 10:00 a.m.
On October 20, 2008, Dwyer contends she telephoned the "Clerk of Court at about 9:15 a.m.... and left a message that [she] would be present in Court as soon as possible, but would be later than the 10:00 a.m. scheduled time." Dwyer does not identify the name or telephone number of the "Clerk of Court" on whose telephone she left a message. Dwyer claims further, that, "at about 9:38 a.m.," she "personally spoke with the Clerk of Court," and she "indicated that [she] thought [she] could be present by 10:30 a.m." Dwyer maintains that she then discussed some of the pre-trial issues she wished to raise with the Court once she arrived at the courtroom. Dwyer states that, "[s]hortly after speaking with the Clerk," she entered a taxi, which was slowed by "traffic congestion." Due to this delay, Dwyer telephoned the Clerk again, at approximately 10:45 a.m., to inform the Clerk that she was "moments away from the Court," at which time the Clerk informed her that the plaintiff's case had been dismissed. Dwyer states she arrived at the courtroom "at about 10:56 a.m."
The plaintiff maintains that the Court should grant his motion to set aside the judgment entered against him, due to his failure to prosecute the action, based upon his counsel's failure to appear timely for trial, because he "was present and ready to proceed to trial," and the dismissal of the action "occurred through no fault of the plaintiff... but only through [his counsel's] fault." The plaintiff also contends Dwyer lacked "any bad faith intention to delay the proceedings before the Court," and that she appeared "on the date set for trial ready to proceed with the trial, albeit an hour later than scheduled." It is further alleged that it was Dwyer's "inadvertent mistake in time management... on the eve of trial that caused [her] to be late for the 10:00 a.m. court appearance."
The defendant opposes the plaintiff's motion, and submits: (1) the plaintiff fails to show an entitlement to relief under Fed. R. Civ. P. 60(b)(1) or 60(b)(6); and (2) Dwyer's failure to appear timely for trial was "another example of [the plaintiff's] dilatory conduct in prosecuting this action," as evidenced by the "repeated... last-minute [requests for] extensions of court ordered deadlines," and ...