United States District Court, District of Columbia
OPINION AND ORDER
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
Michael Shearill moves under Federal Rule of Civil Procedure
60(b)(6) for reconsideration of this Court’s August 16,
2017 Order dismissing this race and age discrimination case.
In that Order, the Court found that dismissal of
Shearill’s complaint without prejudice was warranted
under Local Rule of Civil Procedure 7(b) because his counsel
failed, after numerous warnings and deadline extensions, to
file any opposition to Defendant’s summary judgment
motion. Typically, dismissal of a complaint without prejudice
under Rule 7(b) would not bring a case to an end; the
plaintiff could refile it and start fresh. Here, however, the
Court took the additional step of granting judgment on the
pleadings under Federal Rule 12(c) and dismissing the action
with prejudice, as it found that Shearill had not alleged
facts in his complaint to state a claim for either race or
months later, Shearill asks the Court to reconsider both of
these rulings. The Court will deny his motion.
his failure to oppose Defendant’s summary judgment
motion, Shearill asserts that his counsel had prepared an
opposition, but fell very ill two days before the (extended)
filing deadline and did not recover from his illness until
the day after the Court had granted judgment. Pl.’s
Mot. Reconsideration at 2. The Court declines to alter its
earlier ruling on this point. Shearill’s counsel was
given every reasonable opportunity to meet the filing
deadlines in this case, health issues notwithstanding.
Chronic missed deadlines are precisely what Local Rule 7(b)
is intended to prevent. And while the D.C. Circuit has
questioned the practice of dismissal under that Rule, it has
consistently affirmed the practice so as long as the
dismissal is without prejudice. See Cohen v. Bd. of Trs.
of Univ. of D.C., 819 F.3d 476, 484 (D.C. Cir. 2016).
said, the Court went beyond the remedy warranted for a
violation of Local Rule 7(b)-dismissal of the complaint
without prejudice-and resolved the case on the merits against
Shearill. It did so because it perceived fatal deficiencies
in his pleadings. On that score, the Court erred. To the
extent that Shearill failed to state a claim for race or age
discrimination, it is because he did not plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see Op. & Order at 4–5.
He did not, by contrast, plead facts that affirmatively
precluded relief, nor does his complaint otherwise suggest
that he could not possibly allege facts supporting a
discrimination claim. Thus, because Shearill could allege
“other facts consistent with the challenged
pleading” that might “cure the deficiency”
in his claims, dismissal of the complaint without prejudice
would have been the proper course. Firestone v.
Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996); see
also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir.
2012) (“Dismissal with prejudice is the exception, not
the rule, in federal practice because it ‘operates as a
rejection of the plaintiff's claims on the merits and
[ultimately] precludes further litigation of
them.’” (quoting Belizan v. Hershon, 434
F.3d 579, 583 (D.C. Cir. 2006))). In other words, the Court
erred in finding Shearill’s claims irredeemably
deficient, and thus in dismissing the case with prejudice.
error alone is not sufficient to warrant reconsideration. The
question remains whether the Court’s error warrants
reconsideration under the stringent standards governing
postjudgment relief under Federal Rule 60. Shearill seeks
relief only under Rule 60(b)(6)-the “catchall
provision” of Rule 60 allowing relief for “any
other reason.” To protect interests in finality, that
provision allows relief only in “extraordinary
circumstances.” Kramer v. Gates, 841 F.3d 788,
790 (D.C. Cir. 2007). “‘Extraordinary
circumstances’ is a high bar.” United States
v. Philip Morris USA Inc., 840 F.3d 844, 852 (D.C. Cir.
2016). And the circumstances here-a legal error that could
have been remedied by a timely appeal-do not qualify.
Accepting as true counsel’s reasons for his failure to
timely oppose the defendant’s motion for judgment on
the pleadings, he states that he recovered from his illness
only a day after the Court’s 2017 Order- 29 days before
the deadline for a notice of appeal had run. Pl.’s Mot.
Reconsideration ¶ 7. It is well established that
“Rule 60(b)(6) may not be used as a substitute for an
appeal not taken” unless “the decision not to
appeal” was essentially “involuntary.”
Twelve John Does v. District of Columbia, 841 F.2d
1133, 1141 (D.C. Cir. 1988) (citing example of clerk’s
failure to notify parties that judgment had been entered as
rendering failure to appeal involuntary). And there is no
indication in Shearill’s motion that his decision not
to appeal was anything approaching
that Plaintiffs Motion for Reconsideration (ECF No. 26) is
DENIED. It is further
that Defendant’s Motion for Sanctions (ECF No. 27) is
 Shearill’s motion could also be
understood as one under Rule 60(b)(1), which provides relief
for “mistake[s].” Unlike subsection (b)(6),
subsection (b)(1) does not require the party seeking
reconsideration to show extraordinary circumstances.
Nevertheless, subsection (b)(1), like (b)(6), generally does
not allow reconsideration of legal mistakes; it is reserved
for “the very limited situation when the controlling
law of the circuit changed between the time of the
court's judgment ...