United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Relief from the Court's November 28, 2018 Memorandum and
Order. (Doc. No. 72). Defendants oppose the motion. (Doc. No.
76). For the following reasons, the motion will be denied.
background of this case has been set out in detail in
previous Orders and will not be repeated here. Briefly, on
July 3, 2018, this Court granted summary judgment in favor of
Defendants and dismissed Williams' claims against them
with prejudice. Williams' notice of appeal was not filed
until August 3, 2018, 31 days after the entry of judgment.
No. motion for leave to file a late notice of appeal was
filed, and Williams' appeal was dismissed by the Eighth
Circuit Court of Appeals for lack of jurisdiction as
untimely. In his petition for rehearing, Williams stated the
delay in filing his notice of appeal was due to excusable
neglect or good cause because his counsel had mistakenly
assumed thirty days to be the equivalent of one month, making
the filing deadline August 3, 2018. Williams further stated
his counsel failed to file a timely motion for extension of
time because he did not see the August 7, 2018 letter from
the Court of Appeals advising him that the notice of appeal
appeared to be untimely until after the Court dismissed his
appeal. The Court of Appeals denied Williams' petition
for rehearing and on November 9, 2018, issued its formal
mandate in the case.
then moved this Court to reopen the time to file an appeal
(Doc. No. 69), arguing that excusable neglect or good cause
existed because his counsel mistakenly assumed thirty days to
be the equivalent of one month, and thus believed the
deadline for filing a notice of appeal was August 3. Williams
further argued that his counsel missed the deadline for
filing a motion for extension of time because he did not see
the August 7 letter from the Court of Appeals advising him
that the notice of appeal appeared untimely until after the
appeal was dismissed. This Court denied Williams' motion
on November 28, 2018, finding no good cause or excusable
neglect. (Doc. No. 71).
March 6, 2019, Williams filed the instant motion seeking
relief from the Court's November 28, 2018 Order on the
grounds of mistake, inadvertence, surprise or excusable
neglect. In support of his motion, Williams submits an
affidavit from his counsel asserting that a systemic problem
with his email server diverted the August 7, 2018 letter from
the Court of Appeals and this Court's November 28, 2018
Memorandum and Order to his spam folder. (Doc. No. 72-1).
Plaintiff contends this circumstance was beyond his
counsel's control and constitutes mistake, inadvertence,
surprise or excusable neglect.
Rule 60(b)(1) provides relief for “excusable neglect,
” this does not encompass mistakes resulting from
counsel's failure to act with diligence. Long v.
James, 667 Fed.Appx. 862, 863 (5th Cir. 2016) (internal
quotation omitted). “Insufficient showings for relief
[under Rule 60(b)(1)] ... include when the party or attorney
did not act diligently to discover the purported
mistake....” Id. (quoting 11 Charles Alan
Wright et al., Federal Practice and Procedure § 2858 (3d
this Court's electronic filing system, whenever a
document is filed electronically, the system generates a
“Notice of Electronic Filing” to the filing party
and to any other party to the action who is a registered
user. If the recipient is a registered user, the system's
emailing of the “Notice of Electronic Filing”
constitutes service pursuant to Fed.R.Civ.P. 5. The notice of
electronic filing indicates that the August 7 letter and
November 28 Memorandum and Order were transmitted to all
counsel, including Plaintiff's counsel, via current email
addresses. (Doc. Nos. 64, 71). Even if Plaintiff's
counsel did not receive the letter or the Court's Order,
it did not relieve him of his continuing duty to monitor
developments in the case, including personally reviewing the
docket to determine whether an order has been entered.
See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir.
2012); Fox v. Am. Airlines, Inc., 295 F.Supp.2d 56,
59-60 (D.D.C. 2003), aff'd, 389 F.3d 1291 (D.C.
Cir. 2004) (citing cases).
Court finds the reasons proffered by Plaintiff do not
constitute good cause or excusable neglect and will therefore
deny his motion for relief.
IT IS HEREBY ORDERED that Plaintiffs Motion
for Relief from the Court's November 28, 2018 ...