United States District Court, E.D. Missouri, Eastern Division
REV. XIU HUI “JOSEPH” JIANG, Plaintiff,
TONYA PORTER, et al., Defendants.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of defendant N.M.,
pursuant to Federal Rules of Civil Procedure 59(e) and 60,
for reconsideration and to alter or amend the order imposing
sanctions. Plaintiff has filed a declaration of his former
attorney in opposition to the motion.
26, 2016, the Court entered an order compelling discovery
which required N.M. to produce and disclose information and
documents within 14 days. In an email dated December 13,
2016, plaintiff's counsel warned that a motion for
sanctions would be filed if N.M. did not comply with the
order by December 16, 2016. After N.M. failed to provide the
discovery as required, plaintiff filed a motion for
sanctions. N.M. did not respond, and the motion for sanctions
was granted on May 4, 2017. Defendant now moves for relief
from the sanctions order, claiming that her counsel because
of unavoidable computer error or excusable neglect, was
unaware of the filing of plaintiff's motion for
to granting the motion for sanctions, the Court, on January
24, 2017, extended certain deadlines set forth in the case
management order by approximately 120 days. The extension
applied to the deadlines for completion of expert and
non-expert discovery, Rule 35 examinations, dispositive
motions, and alternative dispute resolution. The extension
was prompted by a motion filed by plaintiff with consent of
all the defendants.
seeks relief from the sanctions order due to error, mistake,
and/or excusable neglect so that she may file a response to
the motion for sanctions. Defendant's counsel states that
due to a computer glitch or other error, he did not see or
receive the motion for sanctions even though he was working
on the case on the very day the motion was filed. Under Rule
60(b)(1), a district court may grant relief from a judgment
on the grounds of “mistake, inadvertence, surprise, or
excusable neglect.” The term “excusable
neglect” in this context is generally “understood
to encompass situations in which the failure to comply with a
filing deadline is attributable to negligence.”
Union Pac. R.R. v. Progress Rail Servs. Corp., 256
F.3d 781, 782 (8th Cir.2001) (quoting Pioneer Inv. Servs.
Co. v. Brunswick Assocs., 507 U.S. 380, 394, 113 S.Ct.
1489, 123 L.Ed.2d 74 (1993)). To be excusable, however, the
neglect must be accompanied by a showing of good faith and
some reasonable basis for not complying with the rules.
Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir.1997).
asks the Court to allow her to belatedly file an opposition
to plaintiff's motion for sanctions. While the failure of
defendant's counsel to respond to plaintiff's motion
for sanctions qualifies as neglect, the Court does not find
this neglect to be excusable, in good faith, or supported by
a reasonable basis. Defendant's counsel states that
neither he nor his intern received or saw the motion for
sanctions. Defendant's counsel further states that while
the document in the Court's file indicates service on
counsel, counsel was only apprised of the document's
existence upon receipt of the order imposing sanctions.
to the Case Management/Electronic Case Filing system, a copy
of the motion for sanctions was emailed to defendant's
counsel. One hundred thirty-nine days passed between service
of the motion for sanctions and entry of the order imposing
sanctions. During that time, other electronic activity
occurred in the case, including the issuance of several
orders. Defendant's counsel would have received
electronic notification of all of this activity. Had
defendant's counsel looked at the electronic case record
even once between December 2016 and May 2017, he would have
seen the motion for sanctions. Furthermore, defendant's
counsel was on notice as early as December 13, 2016, of
plaintiff's intention to file a motion for sanctions.
counsel's assertion that the response to the motion for
sanctions was “stayed” as a result of the order
extending the case management order deadlines is unavailing.
The January 24, 2017 order specifically described the
deadlines that were to be extended. Nothing in the order
refers to extending the deadline for responding to a pending
for N.M. argues that because he had procedures in place to
prevent losing documents that are served on him and because
he had hired a law clerk to help him specifically with this
case, he cannot be said to have acted willfully or
neglectfully. This argument misses the point. Defense counsel
knew that he had not produced the required discovery and was
warned that a motion for sanctions would be filed. Yet, he
chose not to look at the electronic case record because he
thought the case was “on hold.” Klopfenstein
Aff., ¶ 31 [Doc. # 218-1]. Neither the systems he had in
place nor the law clerk he hired would have made any
difference if he wasn't going to check the electronic
case record anyway. “Excusable neglect” under
Rule 60(b) does not include carelessness on the part of an
attorney. See Hunt v. City of Minneapolis, 203 F.3d
524, 528 n. 3 (8th Cir.2000); Hoffman v. Celebrezze,
2d 833');">405 F.2d 833, 835 (8th Cir.1969). Here, defense counsel made
an unreasonable interpretation of the January 24 order which
led to his unreasonable decision to ignore the case record
for 120 days. This was carelessness at best.
light of all the circumstances discussed above, the Court
finds that N.M.'s failure to respond to the motion for
sanctions was not due to excusable neglect.