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Cenny C. Norris v. Ken L. Salazar

October 18, 2011


The opinion of the court was delivered by: Beryl A. Howell United States District Judge


Pending before the Court is the motion by plaintiff Cenny C. Norris, who is proceeding pro se, for reconsideration, pursuant to Federal Rule of Civil Procedure 60(b), of this Court's Order dated April 13, 2011. ECF No. 20. That Order granted, as conceded, the motion to dismiss of the defendant, Ken L. Salazar, Secretary of the U.S. Department of the Interior, and entered judgment in the defendant's favor. Id. The plaintiff explains that she first learned of the defendant's motion to dismiss at the same time she learned that motion had been granted due to her former counsel's inexplicable failure to respond. Pl.'s Mot. For Reconsideration ("Pl.'s Mot."), ECF No. 21, ¶¶ 3, 5, 6. For the reasons set forth below, the plaintiff's motion is granted, this case shall be reinstated, and the plaintiff shall have thirty days to file a response to the defendant's motion to dismiss, ECF No. 18.


The plaintiff initiated this case as a pro se litigant on June 2, 2009, alleging in her complaint racial and disability discrimination and retaliation, stemming from her employment from February 2000 until March 2006, as an Administrative Officer at the Commission of Fine Arts ("CFA"), an agency within the U.S. Department of Interior. Compl. ¶¶ 6,45, 47-51, ECF No. 1. The defendant then moved to dismiss two of the three counts in her complaint. ECF No. 5. After obtaining counsel, the plaintiff -- through her counsel of record, Ernest P. Francis -- filed an opposition to the defendant's motion for partial dismissal and sought leave to amend the complaint. ECF Nos. 7, 8. On September 30, 2010, the Court denied the defendant's motion for partial dismissal and granted the plaintiff's motion to file an amended complaint, which was docketed the same day. Mem. Op. and Order (Walton, J.), ECF Nos. 11, 12. The Amended Complaint alleges that, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., the CFA discriminated against the plaintiff based on her race and disability (back injury), inter alia, in connection with the amount of the performance-based compensation she received. See generally Am. Compl., ECF No. 14.

On December 13, 2010, the defendant filed a new motion to dismiss the entire Amended Complaint. ECF No. 18. Pursuant to the Court's December 8, 2010 Minute Order, the plaintiff's opposition was due by January 14, 2011, on which date the Court granted a consent motion, filed by the plaintiff through her counsel, to extend the time for her response until February 14, 2011.*fn1 Pl.'s Consent Mot. for Extension of Time, ECF No. 19. No response to the defendant's motion to dismiss was filed on the plaintiff's behalf by February 14, 2011, however, and no request for an additional extension of time was made to the Court.

On April 13, 2011, two months after the due date for plaintiff's opposition to be filed, this Court granted the defendant's motion as conceded, pursuant to Local Civil Rule 7(b), which states, in pertinent part, that when an opposing party does not "file a memorandum of points and authorities in opposition to the motion. . . within the prescribed time, the Court may treat the motion as conceded."

Three months later, on July 14, 2011, the Clerk's office of this Court received plaintiff's motion for reconsideration of the April 13, 2011 Order and the Court granted leave to file this motion on July 18, 2011. ECF No. 21. In her motion, the plaintiff states that she retained C. Gregory Stewart as counsel in this matter in March 2006, but Mr. Stewart did not advise her of "a verbal agreement with Ernest P. Francis. to file legal documents with the court" and "never informed [her] of the motions for dismissal, the requests for extensions or the deadlines for filing documents in this case." Pl.'s Mot. ¶¶ 3, 6.*fn2 She indicates that she first learned on June 16, 2011, of these circumstances, including the defendant's motion to dismiss and the Court's dismissal of the case because of the failure "to file the brief by the court's deadline of February 14, 2011." Id. ¶¶ 3, 5. Based upon these circumstances, the plaintiff argues that "it would be unjust for the Plaintiff to suffer because the attorneys failed to adhere to DC Court rules, attempted to circumvent the rules, and because Mr. Stewart did not properly submit an application to practice law in the District of Columbia." Id. at 4-5.*fn3


The plaintiff seeks relief under Rule 60(b) of the Federal Rules of Civil Procedure because she claims the circumstances of this Court's dismissal of the case constitute either "mistake, inadvertence, surprise, or excusable neglect" under Rule 60(b)(1) or qualify as "any other reason that justifies relief" from the judgment under Rule 60(b)(6). Pl.'s Mot. at 3-4 ("The facts outlined above demonstrate surprise and extraordinary circumstances," citing Rule 60(b)(1) and (6)). The defendant counters that the plaintiff is not entitled to "this extraordinary remedy under either Rule 60(b)(1) or Rule 60(b)(6), and she also fails to proffer any basis for the Court to conclude that she has a potentially meritorious claim that would justify the Court's exercise of its equitable powers to reopen this case." Def.'s Opp'n, ECF No. 22, at 2. For the reasons set forth below, the Court will grant the plaintiff's motion for reconsideration.

A. Legal Standard

Federal Rule of Civil Procedure 60(b) authorizes a court to relieve a party from a previous judgment or order for six enumerated reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by an opposing party; (4) a void judgment; (5) a satisfied, released, or discharged judgment; or (6) "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). The party seeking relief from judgment bears the burden of proof. See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383-84 (1992); United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128, 130-131 (D.D.C. 2009); Mazengo v. Mzengi, 542 F. Supp. 2d 96, 100 n.3 (D.D.C. 2008). While all motions under Rule 60(b) must be made "within a reasonable time," applications for relief under the first three reasons must be made within a year after entry of the judgment or order. Fed. R. Civ. P. 60(c)(1).

Rule 60(b)(1) states that a court may relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). The determination of "surprise" or "excusable neglect" is an equitable matter that requires consideration of, inter alia, the risk of prejudice to the non-movant, the length of delay, the reason for the delay, including whether it was in control of the movant, and whether the movant acted in good faith. FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395-97 (1993)). Negligence, or even gross negligence, on the part of counsel does not constitute the "excusable neglect" warranting relief under this section of the rule. See Lightfoot v. District of Columbia, 555 F. Supp. 2d 61, 67 n.5 (D.D.C. 2008) (citing Bershad v. McDonough, 469 F.2d 1333, 1337 (7th Cir. 1972) (affirming that "neither ignorance nor carelessness on the part of a litigant or his attorney will provide grounds for rule 60(b)[(1)] relief")).

If the first five reasons set forth in Rule 60(b) are inapplicable, the court may look to the "catch-all" provision of Rule 60(b)(6), which "gives courts discretion to vacate or modify judgments when it is 'appropriate to accomplish justice.'" 8 Gilcrease Lane, 668 F. Supp. 2d at 130-131 (quoting Klapprott v. U.S., 335 U.S. 601, 614-15 (1949)); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988). Rule 60(b)(6) is only available when "the motion . . . is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5)."); Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007) (Rule 60(b)(6) is mutually exclusive with other grounds for relief under Rule 60(b)). The Supreme Court has held that only "extraordinary" circumstances warrant relief under Rule 60(b)(6), Ackermann v. United States, 340 U.S. 193, 202 (1950), and this Circuit "has cautioned that it 'should be only sparingly used.'" Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); Epps v. Howes, 573 F. Supp. 2d 180, 185 (D.D.C. 2008); Campbell v. United States, No. 92-0213, 2006 U.S. Dist. LEXIS 36544, at *2 (D.D.C. May 19, 2006). The requisite "extraordinary circumstances" under Rule 60(b)(6) may be found when a faultless plaintiff seeks relief from a final judgment or order due to counsel's ineffective assistance amounting to neglect of the movant's case. See Peter B. v. U.S., No. 05-2189, 2006 WL 2038512, at *1-2 (D.D.C. Jul. 19, 2006).

Rule 60(b) "was intended to preserve the 'delicate balance between the sanctity of final judgments . . . and the incessant command of the court's conscience that justice be done in light of all the facts."" Good Luck Nursing Home, 636 F.2d at 577 (quoting Bankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970), cert. denied, 399 U.S. 927 (1970)). Thus, the granting or denial of a Rule 60(b)(6) motion "is entrusted to the sound discretion of the district court." Randall v. Merrill Lynch, Pierce, Fenner & ...

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