MEMORANDUM OPINION
EMMET G. SULLIVAN, District Judge.
Pending before the Court is defendants' motion to dismiss or, alternatively, motion to dismiss and for summary judgment. Upon consideration of the motion, the response and reply thereto, the applicable law, the entire record, and for the reasons set forth below, defendants' motion is GRANTED.
I. BACKGROUND
Plaintiff Woody Voinche, pro se, "is a private citizen who has filed numerous lawsuits for personal information and for information on the activities of government officials that is unconstitutional[.]" Compl. ¶ 3; see also Defs.' Mem. at 1 n. 1 (explaining that this is plaintiff's eighteenth lawsuit against federal government agencies and officers). Plaintiff, who is seeking "records that were in the possession of the White House and Executive Office of the President and National Archives," Compl. ¶ 3, brings this action against former President George W. Bush; President Barack Obama; the Executive Office of the President ("EOP"); the Office of Administration of the EOP ("OA"); the Head of the OA, in his official capacity; the National Archives and Records Administration ("NARA"); the Archivist of the United States ("Archivist"), in her official capacity; United States Attorney General Eric Holder (the "Attorney General"); and ten unknown federal and state agents (collectively, "defendants"). Compl. ¶¶ 4-12. Plaintiff asserts causes of action under the Presidential Records Act ("PRA"), 44 U.S.C. § 2201 et seq.; the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, 703, 704, and 706; the Federal Records Act ("FRA"), 44 U.S.C. § 2101 et seq., including the Disposal of Records Act ("DRA"), 44 U.S.C. §§ 3301- 3314; 18 U.S.C. § 3504 (concerning sources of evidence in criminal cases); the Omnibus Crime Control and Safe Streets Act ("OCCSSA"), 18 U.S.C. §§ 2510- 20; the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. §§ 1801-62; "every Amendment to the Constitution of the United States of America, including but not limited to the 1st, 4th, 5th, 8th, and 14th Amendments"; Misprision of a Felony, 18 U.S.C. § 4; the Federal Tort Claims Act ("FTCA"); the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; the Privacy Act, 5 U.S.C. § 552a; and 42 U.S.C. §§ 1983, 1984, 1985, 1986 ("the Civil Rights Acts"). Plaintiff also asserts a "Bivens action for violation of Plaintiff's rights under 1st, 4th, 5th, 8th, and other amendments to the Constitution," and "is challenging as contrary to law the knowing failure of the defendants to recover, restore, and preserve certain electronic records and prevent erasure of emails, telephone records, voice mail, interagency or intraagency records, wiretaps, or any other records concerning the numerous emails the Plaintiff sent to the Bush or Obama administration on the subject of the FBI lawsuits and the surveillance of the Plaintiff and release of a toxic substance or any other lawsuits that Plaintiff has filed concerning this subject[.]" Compl. ¶¶ 1, 2.
Plaintiff's suit arises, at least in part, from a February 12, 2009 letter that plaintiff sent to President Obama, the EOP, the OA, the Council on Environmental Quality ("CEQ"), NARA, and the Archivist seeking "records . . . concerning any emails [plaintiff] sent to the Whitehouse concerning the FBI surveillance of [plaintiff], release of a toxic chemical in [plaintiff's] home, or any of the lawsuits [plaintiff has] filed against the FBI making these allegations[,] or documents on the case against [former President] George Bush and the Executive Office of the President[,]" as well as "any records the EOP has obtained from the FBI, CIA, NSA, or any other agency about [plaintiff]." Compl. ¶ 15.
In response to plaintiff's complaint, defendants filed a motion to dismiss or, alternatively, motion to dismiss and for summary judgment. Plaintiff opposes this motion. Defendants' motion is now ripe for determination by the Court.
II. STANDARDS OF REVIEW
A. Rule 12(b)(1)
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because subject matter jurisdiction focuses on the court's power to hear a claim, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Thus, to determine whether it has jurisdiction over a claim, the court may consider materials outside the pleadings where necessary to resolve disputed jurisdictional facts. Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
B. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (internal quotation marks and citations omitted). "`[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint[,]'" Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A court must not, however, "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Id. In addition, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.ct. 1937, 1949 (2009). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. A complaint must therefore plead "`factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Atherton, 567 F.3d at 681 (quoting Iqbal, 129 S.ct. at 1949). This, in turn, "asks for more than a sheer possibility that a defendant has acted unlawfully"; a complaint alleging facts that are "`merely consistent with' a defendant's liability . . . `stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.ct. at 1949 (quoting Twombly, 550 U.S. at 557).
C. Summary Judgment
Rule 56 permits the Court to grant summary judgment only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F. 3d 989, 991 (D.C. Cir. 2002). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex, 477 U.S. at 323. In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To survive a motion for summary judgment, plaintiff cannot merely rely on the unsupported allegations of the complaint, and must present more than the "mere existence of a scintilla of evidence" in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
D. Pro se litigants
The pleadings of pro se parties are "to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal citations and quotation marks omitted). But "although a court will read a pro se plaintiff's complaint liberally," a pro se complaint, no less than any other complaint, "must present a claim on which the Court can grant relief." Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)). Because pro se litigants are afforded a more lenient pleading standard, their failure to respond to an argument is not construed as a concession unless they have been advised of this rule. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). This Court gave such notice by way of an Order issued on September 24, 2009.
III. ANALYSIS
As a threshold matter, defendants argue that "[d]ismissal of this action is appropriate because the Complaint does not contain a `short and plain statement of the claim showing that the pleader is entitled to relief' as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure." Defs.' Mot. at 1. Given the lenient pleading standards governing pro se complaints, see supra Section II.D, the Court DENIES defendants' request to dismiss plaintiff's complaint in toto for failure to comply with Rule 8(a). Instead, the Court will endeavor to address the specific allegations contained in plaintiff's complaint and supporting materials. Cf. Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (permitting courts to consider supplemental materials filed by pro se litigants in order to clarify the precise claims being urged). Because this case is, in essence, a "case for records that were in the possession of the White House and Executive Office of the President and National Archives," Compl. ¶ 3, the Court will begin by addressing plaintiff's FOIA claims.
A. Plaintiff's FOIA Claims
On February 12, 2009, plaintiff submitted a "Freedom of Information-Privacy Act request" to President Obama, EOP, OA, CEQ, NARA, and the Archivist seeking "records . . . concerning any emails [plaintiff] sent to the Whitehouse concerning the FBI surveillance of [plaintiff], release of a toxic chemical in [plaintiff's] home, or any of the lawsuits [plaintiff has] filed against the FBI making these allegations[,] or documents on the case against [former President] George Bush and the Executive Office of the President[,]" as well as "any records the EOP has obtained from the FBI, CIA, NSA, or any other agency about [plaintiff]." Compl. ¶ 15. Defendants seek to dismiss plaintiff's FOIA claims against the EOP, OA, former President George W. Bush, and President Barack Obama for lack of subject matter jurisdiction, and request summary judgment on plaintiff's FOIA claims against CEQ and NARA. For the reasons discussed below, the Court hereby GRANTS defendants' motion as to plaintiff's FOIA claims.
The FOIA requires that an agency, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available" to the requester. 5 U.S.C. § 552(a)(3)(A). The agency must "determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with [it] and shall immediately notify the [requester] of such determination and the reasons therefor, and of the [requester's] right . . . to appeal to the head of the agency any adverse determination." Id. § 552(a)(6)(A)(i).
1. FOIA Claims Against the EOP and OA
Defendants assert that plaintiff's FOIA claims against the EOP and OA must be dismissed because neither entity is an agency subject to the FOIA. This Court agrees. See United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998) (explaining that because the EOP is an umbrella organization, "it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA"); Citizens for Responsibility Ethics in Wash. v. Office of Admin., 566 F.3d 219, 224 (D.D.C. 2009) (concluding that the OA is "not an agency under FOIA"). Accordingly, the Court hereby GRANTS defendants' request to dismiss plaintiff's FOIA claims against these agencies.
Defendants do not, however, dispute that certain units within the EOP — such as the CEQ — are agencies subject to the FOIA. See infra Section III.A.3 (requesting the entry of summary judgment as to Defendant CEQ).
2. FOIA Claims Against Former President Bush and President Obama
The Court also agrees that plaintiff's FOIA claims against former President Bush and President Obama must be dismissed because "no FOIA claim may be asserted against individual federal officials." Whittle v. Moshella, 756 F. Supp. 589, 596 (D.D.C. 1991).
While the records of a former president are generally subject to FOIA five years after the president leaves office, FOIA requests for presidential records must be submitted to NARA. See generally Am. Historical Ass'n v. Nat'l Archives Records Admin., 516 F. Supp. 2d 90, 92-95 (D.D.C. 2007) (providing an overview of the Presidential Records Act and explaining that presidential records not otherwise restricted "shall be made available by the Archivist to the public after five years, generally subject to the conditions of the [FOIA]").
3. FOIA Claim Against CEQ
With regards to plaintiff's FOIA claim against Defendant CEQ, defendants argue that they are entitled to summary judgment because plaintiff failed to exhaust his administrative remedies under the FOIA. Defs.' Mem. at 21-22; see generally Bruzon v. DEA, 576 F. Supp. 2d 1, 3 (D.D.C. 2008) (explaining that "`[e]xhaustion of administrative remedies is generally required'" before a FOIA suit may be filed in federal court (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990))). In support of their exhaustion claim, defendants provide the declaration of Edward Boling, Senior Counsel for Environmental Policy and Public Information at the CEQ. See Ex. A to Defs.' Mot., Declaration of Edward Boling ("Boling Decl."). This declaration indicates that CEQ received plaintiff's FOIA request on March 31, 2009, and immediately processed the request. Boling Decl. ¶¶ 9-10. Mr. Boling indicates that he was notified by CEQ staff on April 1, 2009 that "no responsive records had been found," and that he, in turn, "directly replied to Plaintiff with that finding." Boling Decl. ¶ 10. Indeed, by letter dated April 1, 2009, plaintiff was informed that "[n]o documents responsive to your request were located," and was further apprised that he had "45 days of the date of this letter" to appeal the finding. See Attach. to Boling Decl., Letter from Edward Boling to Woody Voinche dated April 1, 2009. No such appeal was filed. See Boling Decl. ¶ 11. Because plaintiff does not dispute this evidence or otherwise contest Defendant CEQ's request for summary judgment, the Court hereby GRANTS defendants' motion for summary judgment as to Defendant CEQ.
4. FOIA Claim Against NARA
Defendants further argue that Defendant NARA is also entitled to summary judgment because "NARA complied with the requirements of FOIA in responding to Plaintiff's request for information." Defs.' Mem. at 24 (citing 5 U.S.C. § 552(a)(3), (b)(1)-(b)(9)). In support of their request for summary judgment, defendants submitted the declaration of Steven Tilley, Director of the Textual Services Division in the Access Program Unit of the Office of Records Service at NARA. See Ex. B to Defs.' Mot., Declaration of Steven Tilley ("Tilley Decl."). This declaration indicates that plaintiff's FOIA request was processed by NARA on February 23-24, 2010. Tilley Decl. ¶¶ 9-10. Plaintiff was advised by letters dated February 24, 2009, February 26, 2009, and March 11, 2009 that no responsive records were located. See Tilley Decl. ¶¶ 11-13. After plaintiff filed an appeal with NARA on March 13, 2009, Deputy Archivist Adrienne C. Thomas directly replied to plaintiff on April 21, 2009. See Ex. E to Tilley Decl., Letter from Adrienne C. Thomas to Woody Voinche dated April 21, 2009. In her letter, Ms. Thomas explained that after "a reasonable search" for "all records relating to FBI surveillance of you, the release of toxic chemicals in your home, and any of the lawsuits you have against the FBI," no responsive records were found. See Ex. E to Tilley Decl. The letter further explained that the "George W. Bush Presidential records that you seek are not subject to request under the Freedom of Information Act until January 20, 2014," and therefore concludes that "your request for Bush presidential records is not ripe for appeal at this time." Ex. E to Tilley Decl.
In his opposition brief, plaintiff fails to dispute or otherwise respond to defendants' proffered evidence on this issue. See Defs.' Reply Br. at 8 ("Nowhere in Plaintiff's Opposition does he even mention his FOIA request to Defendant NARA, Defendant NARA's processing thereof, or Defendant NARA's sworn declaration attesting to the reasonableness and adequacy of its search for records responsive to Plaintiff's request[.]"). Therefore, having received no objection from plaintiff to entry of summary judgment on this issue, and having found defendants' evidence regarding the adequacy of NARA's search persuasive, the Court hereby GRANTS defendants' motion for summary judgment as to Defendant NARA.
B. Plaintiff's Non-FOIA Claims
In addition to his FOIA claims, plaintiff also asserts numerous other causes of action against defendants. Specifically, plaintiff alleges violations of the PRA, the APA, the FRA, the DRA, 18 U.S.C. § 3504, the OCCSSA, FISA, "every Amendment to the Constitution of the United States of America, including but not limited to the 1st, 4th, 5th, 8th, and 14th Amendments," 18 U.S.C. § 4, the FTCA, the Civil Rights Acts, as well as a Bivens claim (collectively, plaintiff's "non-FOIA claims"). In their motion, defendants provide detailed analysis explaining why each of these causes of action must be dismissed. While the Court will provide its own brief analysis below, the Court hereby GRANTS defendants' motion to dismiss plaintiff's non-FOIA claims substantially for the reasons articulated in defendants' motion and reply brief.
1. Claims Under the FTCA and FISA
Because plaintiff failed to address the arguments raised by defendants in their motion to dismiss regarding plaintiff's purported failure to exhaust his administrative remedies under either the FTCA or FISA — despite having been warned by the Court of the necessity to do so — the Court hereby GRANTS defendants' motion to dismiss plaintiff's FTCA and FISA claims.
2. Claims Under the FRA, PRA, and DRA
Defendants argue that plaintiff's claims under the FRA, PRA, and DRA must be dismissed because plaintiff fails to assert any factual allegations in support of these claims. See Defs.' Mem. at 12-13; Reply Br. at 3-4. Defendants explain that "[p]laintiff's complaint offers no factual basis for his belief that the records he seeks even exist, or to the extent they may exist, that any such records have been destroyed or are at risk of destruction." Defs.' Mem. at 12. This Court agrees.
The FRA is a collection of statutes that sets forth federal agencies' records creation, management, and disposal duties. Citizens for Responsibility Ethics in Wash. v. Exec. Office of the President, 587 F. Supp. 2d 48, 52 (D.D.C. 2008) (citing 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq). "FRA is intended to assure, among other things, `[a]ccurate and complete documentation of the policies and transactions of the Federal Government,' `[c]ontrol of the quantity and quality of records produced by the Federal Government,' and `[j]udicious preservation and disposal of records.'" Id. (quoting Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir. 1993)). The FRA also requires an agency to obtain the Archivist's approval before disposing of any federal record. Id. At 53.
Plaintiffs only proffered statement in support of these claims is: "The emails at issue and other records may have been improperly deleted or destroyed by the Executive Office of the President and should be restored from backup tapes. The Plaintiff also challenges the failure of the Archivist and the Head of the Office of Administration to take enforcement action to insure adequate preservation of all federal records." Compl. ¶ 2. Such vague and speculative statements are simply insufficient to state a cause of action under the PRA, FRA, or DRA. See generally Iqbal, 129 S.ct. at 1950 ("To survive a
While plaintiff's complaint contains a recitation of the elements of the FRA, plaintiff does not even recite — much less address — the elements of a claim under either the PRA or DRA in either his complaint or opposition brief. See Defs.' Mem. at 13; Defs.' Reply Br. at 3 n. 3. The Court, therefore, is simply left to guess at how plaintiff believes he has pled a plausible claim for relief under these statutes.
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not show[n] — that the pleader is entitled to relief." (internal quotation marks omitted)); Jaegar v. United States Gov't, 524 F. Supp. 2d 60, 64 (D.D.C. 2007) (dismissing a pro se complaint where the allegations contained in the complaint were "far too conclusory to satisfy the notice pleading standards of Fed.R.Civ.P. 8(a)"). Accordingly, the Court hereby GRANTS defendants' motion to dismiss plaintiff's FRA, PRA, and DRA claims.
3. APA Claim
With regards to plaintiff's APA claim, defendants argue that "[b]ecause FOIA provides an adequate remedy for the relief Plaintiff seeks under his APA claim, the Court lacks subject matter jurisdiction to consider that claim." Defs.' Mem. at 13; see generally Bennett v. Spear, 520 U.S. 154, 162 (1997) ("[T]he APA by its terms independently authorizes review only when `there is no other adequate remedy in a court[.]'" (quoting 5 U.S.C. § 704)). In response, plaintiff argues that "the APA authorizes review of a claim that the agencies [sic] policies are arbitrary and capricious and do not comport with the FRA." Pl.'s Opp'n Br. at 11; see also Pl.'s Opp'n Br. at 11 (citing Armstrong v. Bush, 924 F.2d 282, 296 n. 12 (D.C. Cir. 1991) for the proposition that private litigants may sue under the APA to require an agency head and archivist to take action to prevent the unlawful destruction or removal of records). While it is undoubtedly true that "a private party can sue under the APA to obtain a declaration that an agency's recordkeeping practices are contrary to law," Citizens for Responsibility Ethics in Wash. v. U.S. Dep't of Homeland Sec., 592 F. Supp. 2d 111, 124 (D.D.C. 2009), plaintiff has failed to allege that "`the [agency's] recordkeeping guidelines and directives are arbitrary and capricious.'" Id. (quoting Armstrong, 924 F.2d at 297)). Therefore, because "[p]laintiff has not asserted any facts suggesting that the records he seeks are not being preserved in accordance with the FRA, let alone exist," Defs.' Reply Br. at 4, the Court hereby GRANTS defendants' request to dismiss plaintiff's APA claim.
4. Criminal Code Claims
Plaintiff also invokes several sections of the federal criminal code as a basis for his action: (i) 18 U.S.C. § 3504; (ii) 18 U.S.C. § 4; and (iii) OCCSSA, 18 U.S.C. §§ 2510- 2520. Defendants argue that "none of these statutes provides Plaintiff with a cause of action here," Defs.' Mem. at 14; this Court agrees. With regards to § 3504, this claim must fail because § 3504 does not provide plaintiff with an independent cause of action, rather it merely "establishes procedures to be followed `upon a claim by a party aggrieved that evidence is inadmissible because' of an illegal interception" in any trial, hearing, or other proceeding. Gelbard v. United States, 408 U.S. 41, 54 (1972). Plaintiff's claims under § 4 of the criminal code — misprision of felony — must fail for the same reason. See, e.g., Keyter v. Bush, No. 03-2496, 2004 U.S. Dist. LEXIS 29046, at *8 (D.D.C. Aug. 4, 2004) (dismissing plaintiff's misprision of felony claim because the statute "do[es] not provide for a private cause of action"). Plaintiff's claim under OCCSSA must also be dismissed because "[a]lthough the Omnibus Crime Control and Safe Streets Act allows for the recovery of civil damages, the United States is specifically exempted." Voinche v. Exec. Office of the President, No. 06-1272 (D.D.C. June 12, 2007) (citing 18 U.S.C. § 2520). Accordingly, the Court hereby GRANTS defendants' request to dismiss these claims as well.
5. Constitutional Claims
In his complaint, plaintiff also asserts claims under "every Amendment to the Constitution of the United States of America, including but not limited to the 1st, 4th, 5th, 8th, and 14th Amendments." Compl. ¶ 1. Defendants argue that "[a]lthough Plaintiff repeatedly mentions numerous Constitutional Amendments and protections generally, he does not do so with the requisite specificity." Defs.' Mem. at 15-16 (internal citations and quotation marks omitted). Having closely reviewed plaintiff's complaint, the Court finds only vague assertions of purported constitutional violations. See, e.g., Compl. ¶ 12 (alleging that federal and state agents "entered the Plaintiff's home and released a poisen [sic] substance in violation of the 4th, 5th, 8th and other amendments"); Compl. ¶ 23 (alleging federal or state agents "listen[ed] in on phone conversations" in "violation of the due process, searches and seizures, cruel and unusual, equal protection, [and] other amendments"); Compl. ¶ 25 ("The Plaintiff has evidence of a 25 year conspiracy by the FBI and a number of Louisiana politicians to wiretap his phone and house, and the use of electronic tracking devices on his vehicle and the release of a toxic substance in his home [sic] or the FBI and Bush administration or [sic] knows who is doing this, in violation of the Constitution . . ."). These convoluted statements fail to provide the "requisite specificity" needed to survive a motion to dismiss. See Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987) ("[I]f plaintiff is asserting a claim for constitutional violations he should do so with the requisite specificity, so as to give defendants notice, plead the involvement of each defendant and clarify what constitutional right has been violated."). Accordingly, plaintiff's constitutional claims are hereby DISMISSED.
6. Section 1983 Claim
The Court also GRANTS defendants' motion to dismiss plaintiff's claim under 42 U.S.C. § 1983. Defendants correctly recognize that § 1983 applies only to individuals acting under color of state law. See Defs.' Mem. at 5 ("Plaintiff's claims under § 1983 must be dismissed because that statute's provisions implicate actions under state law and do not apply to federal officials acting under the color of federal law."); see generally 42 U.S.C. § 1983 ("Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . ." (emphasis added)). Plaintiff responds by arguing that his § 1983 action is cognizable against the "Unknown State Agents the Plaintiff listed as Defendants in this case." Pl.'s Opp'n Br. at 12. While this may be true, the Court nevertheless finds that plaintiff's complaint fails to state a claim for municipal liability. First, as noted above, plaintiff fails to state a predicate constitutional violation with requisite specificity. See supra Section III.B.5. Second, and equally fatal, plaintiff's complaint fails to allege a custom or policy of the municipality that caused the purported constitutional violation. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) ("In considering whether a plaintiff has stated a claim for municipal liability . . . the court must [first] determine whether the complaint states a claim for a predicate constitutional violation. . . . [and] if so, then . . . determine whether the complaint states a claim that a custom or policy of the
municipality caused the violation."). Accordingly, plaintiff's § 1983 claim is hereby DISMISSED. 7. Bivens Claim
Defendants also argue that plaintiff has failed to plead an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Under Bivens, a plaintiff may bring "an action against a federal officer seeking damages for violations of the plaintiff's constitutional rights." Simpkins v. District of Columbia Gov't, 108 F.3d 366, 368 (D.C. Cir. 1997). A Bivens suit, however, "must be brought against federal officers in their individual capacity and `[t]he complaint must at least allege that the defendant federal official was personally involved in the illegal conduct.'" Peavey v. Holder, 657 F. Supp. 2d 180, 192 (D.D.C. 2009) (quoting Simpkins, 108 F.3d at 369). Here, plaintiff has neither sued nor served the named defendants in their individual capacities, nor alleged any facts suggesting that the federal officials named in his complaint — former President George W. Bush, President Barack Obama or Attorney General Eric Holder — were personally involved in the alleged conduct underlying plaintiff's purported Bivens claim. See Compl. ¶ 12 (explaining that his "Bivens style suit" is based on a conspiracy among defendants who "entered the Plaintiff's home and released a poisen [sic] substance"). Nor did plaintiff respond to defendants' argument that, "to the extent [plaintiff] is alleging a Bivens claim against any individually named Defendant in his individual capacity, these Defendants, as federal government officials enjoy qualified immunity from constitutional and statutory claims." Defs.' Reply Br. at 6. Accordingly, the Court agrees with defendants that "[p]laintiff's Bivens claims against Defendants must be dismissed because Plaintiff has failed to state a claim for any violation of clearly established law, and Federal Defendants are shielded from liability for civil damages." Defs.' Mem. at 20; see also supra Section III.B.5 (finding that plaintiff failed to a plead a constitutional violation with requisite specificity).
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS defendants' motion to dismiss and for summary judgment. An appropriate Order accompanies this Memorandum Opinion.
September 29, 2010
ting the Motion to Dismiss on May 13, 2008. Doc 6-1, p 10.
The state court file is then strangely silent until December 5, 2008, when Defendant filed a Response to the State Court's letter regarding a settlement facilitator. Doc 6-1, p 7. That letter is not in the file. Defendant agreed that a settlement facilitator would be a good idea.
On January 21, 2009, the State Court issued a Notice of Status Conference for February 3, 2009. Doc 6-1, p 5. The Court conducted the status conference on February 3, 2009. See FTR Reporter's Notes, doc 6-1, p 3. Attorney Silva stated that although he had sent the Notice of Status Conference to his client, he had not heard back. The next day the Court issued a Notice of Bench Trial for April 23, 2009. Doc 6-1, p 1.
On April 23, 2009, the day of the scheduled bench trial, Plaintiff filed a motion to set aside the dismissal and default. Doc 7-1, p 56. This was also the day that Defendant filed its Requested Findings of Fact and Conclusions of Law. Doc 7-1, p 51. The FTR Reporter's Notes for this hearing were filed May 14, 2009. Doc 7-1, p 48. The State Court did not conduct the bench trial on damages. Instead, the Notes indicate the Court heard and granted the Motion to set aside the default on the counterclaim, but denied the motion to set aside dismissal of the complaint. He also required Plaintiff to pay all Defendant's costs and ordered production of all documents within 30 days. If the payments were not made or the discovery nor produced, the default would be reinstated. At this point, Attorney Silva argued that Plaintiff could not produce patient names because of HIPAA. The Court responded simply that he had to produce.
On April 30, 2009 Plaintiff filed an Application for Fees and Costs. Doc 7-1, p 37.
On May 1, 2009, Plaintiff filed both a Certificate of Compliance, doc 7-1, p 31, and a Motion to Extend Time to Disclose Certain Documents, doc 7-1, p 32.
On May 4, 2009 Plaintiff objected to the amounts of fees and costs requested. Doc 7-1, p 29. On the same date he also objected (for the second time) to Discovery Request 2 because of HIPAA regulations. Doc 7-1, p 27.
On May 11, 2009 Defendant replied to Plaintiff's objection to fees and costs. Doc 7-1, p 24.
On May 13, 2009, the Court entered its order granting in part and denying in part Plaintiff's Motion to Set Aside. Doc 7-1, p 22.
On May 15, 2009 Defendant filed a response to Plaintiff's Certificate of Compliance and Motion for an Extension, arguing that they were incompatible. Doc 7-1, p 20.
On June 19, 2009 Defendant filed its Motion to Reinstate Sanctions for Failure to Make Discovery. Doc 7-1, p 15. The grounds set forth in the Motion were that Plaintiff has failed to obey court orders regarding production, that answers were incomplete, the answers were handwritten, that Plaintiff had failed to disclose financial accounts and that "McCraney continues to assert HIPAA even though that claim was previously rejected by this Court on the Second Motion to Compel, and Third Motion to Compel and by this Court's 13 May order." Id., p 7. Exhibit A to the Motion is a notarized statement from Plaintiff that he has not had sexual relations with any employee of High Desert nor has he induced any employee to leave that company. Doc 7-1, p 10. Defendant argued that this was not the question asked. Exhibit B is a copy of bank statements produced by Plaintiff. Doc 7-1, p 12. Defendant argued that the bank statements showed two transfers from undisclosed financial accounts. Defendant also asked for a hearing on both the attorney fee request and the Motion to Reinstate. Doc 7-1, p 1. Plaintiff did not respond to this Motion.
"In reviewing his bank account statements, they show very large cash transfers of $28,795 and $11,678 from an undisclosed account. This undisclosed account must be revealed in accordance with Discovery Request 2(b) of the First Set of Interrogatories and Requests for Production of Documents . . . Here, there is obviously another account which McCraney has the ability to withdraw funds [sic] and he failed to provide it." Doc 7-1, p 8.
High Desert claimed in its counterclaim that these alleged behaviors constitute violations of the employment contract between the parties.
The Court set August 31, 2009 to hear both the attorney fee issue and the Motion to Reinstate. Doc 8-1, p 47. And it conducted the hearing on that date. See FTR Reporter's Notes, doc 8-1, p 43. It is not entirely clear from these Notes what exactly was said. Attorney Schwarz made references to transfers from undisclosed bank accounts. Attorney Silva stated that he was unaware of those accounts because he had not spoken to his client. Schwarz also referred to the failure to provide patient information and represented that the issue had been dealt with in previous orders. The Court then granted Defendant's request for attorney fees and costs and reinstated the discovery sanctions (that is, struck Plaintiff's answer to the counterclcaim).
On September 9, 2009 the Court entered two orders: one allowing interim attorney fees for Defendant, doc 8-1, p 41; and one Reinstating Sanctions and Judgment, doc 8-1, p 39. Attorney Silva never asked for a reconsideration of either order.
On October 15, 2009, the Court then set a bench trial for February 10, 2010. Doc 8-1, p 34. Several pleadings follow in the state case, but are not of particular relevance. Plaintiff filed a case under Title 11 on December 10, 2009.
The counterclaim asked for damages to be proved at trial.
On January 13, 2010, Plaintiff removed the case to the United States Bankruptcy Court. The Miguel County Court Manager for the District Court certified the record of the state case and it was filed for record in this adversary proceeding on January 13, 2010. The Bankruptcy Court conducted a status conference on February 3, 2010. Plaintiff stated his intention to file a motion to set aside the default, and this Court set briefing deadlines. Plaintiff filed the Motion to Set Aside on March 10, 2010, and Defendant responded on April 9, 2010.
Plaintiff is only seeking to set aside the September 9, 2009 order that, among other things, declared that Defendant was entitled to a default judgment on its counterclaim against Plaintiff. It does not seek to disturb the May 13, 2008 order that dismissed all of Plaintiff's claims with prejudice.
Plaintiff's argument is that the State Court reinstated the default based on incorrect allegations that he had failed to disclose bank accounts and other grounds that do not support the extreme remedy of default. Doc 17, p 2.
Attached to Plaintiff's motion to set aside is an Affidavit of David McCraney. He states under oath that he responded to discovery requests in reliance on his attorney's advice and with the understanding that they were sufficient, including the handwritten responses to the first set, the answers to the second set, the bank statements, and other documents provided and the affidavit he signed. He further states that Attorney Silva did not provide him with copies of pleadings other than the original complaint and counterclaim. He received a copy of the notice of hearing on the Motion to Reinstate Sanctions which was set for August 31, but he never was given a copy of the Motion itself. McCraney called Attorney Silva after receiving the notice. Silva told him that the hearing was only to make him pay for High Desert's expenses leading up to the April 23, 2009 damages trial.
McCraney was already scheduled to be on vacation at the time of the August 31 hearing and Silva told him there was no point in his attending the hearing because there was no way to dispute the sanctions. Silva did not tell him that the Court would consider reinstating the default judgment.
After the hearing, Silva told McCraney that High Desert had informed the judge that he had undisclosed bank accounts. McCraney now understands that Defendant represented to the Court that he had made transfers of $28,795 and $11,678 from undisclosed accounts. These representations were false. First, the transfers were only for $8,032.53 and $3,000.00, neither from an undisclosed account. The first was a transfer from his business account which had been disclosed, and the second was a simple deposit of a distribution from a business venture. The higher amounts represented to the Court were the balances in the account after the transfers.
With regard to the patient information disclosures, McCraney thought that if he produced this information it would become part of the public record and its disclosure would violate federal HIPAA law and expose him to civil liability, actions against his license, and even criminal charges. If Attorney Silva had ever discussed this issue with Attorney Schwarz, that fact had never been communicated to him. Consequently, he was awaiting a ruling from the judge on the objection to disclosure that he knew his attorney filed, believing the judge would seal the record or allow appropriate redaction or declare that he could produce it without liability. McCraney has the patient information on hand and is prepared to release it as soon as he obtains a ruling. McCraney could and would have explained all of this to the judge on August 31, 2009, if he had been present.
OTHER FINDINGS
This Court has further observations about Attorney Silva's representation of Plaintiff. His complaint alleged breach of contract and wrongful discharge and sought actual and punitive damages, attorney's fees and costs. It named both High Desert and Jerry Williams the owner of High Desert. The Complaint does not distinguish between the Defendants and does not specify who the contract was with or which Defendant did what action. He failed to attach a copy of the contract at issue. He then filed a subpoena for Plaintiff's personnel file that did not allow sufficient time under the rule to respond. Defendant objected and did not produce. There is no indication he ever renewed his request, sought a ruling or obtained the file. Defendants' Motion to Dismiss points out that under the American Rule, Plaintiff was not entitled to attorney fees. It also correctly argued that a plaintiff must allege and prove wilful, wanton, malicious, reckless, oppressive or fraudulent behavior to obtain punitive damages. The complaint alleged none. Defendant also argued that to state a claim for wrongful discharge a plaintiff must allege a protected activity and because of the employee's participation in that activity his employment was terminated. The complaint alleged no protected activity. Silva never responded to the Motion to Dismiss.
Silva's response to the Motion to Compel was that Plaintiff "is currently compiling" the discovery, it was difficult, and Plaintiff anticipated he could produce it. This is not a proper response. If his client could not timely respond to the discovery he should have alerted counsel, sought an agreed upon extension, or filed a motion for extension or protective order before the deadline to respond.
Before the first hearing, Silva agreed to withdraw the wrongful discharge claim. At the first hearing, the Court struck the punitive damage request almost without discussion, ordered compliance with discovery and assessed a fine.
The Defendants' Motion to File Counterclaim alleges that Silva did not respond when asked for concurrence in the motion. Then Silva answered the counterclaim before any order was filed allowing it to be filed.
Silva never filed a response to the Motion for Summary Judgment.
Plaintiff's January 16, 2008 objection to Defendants' Second set of discovery is simply a listing of what would and would not be produced. Some items would be, some would not because they were "irrelevant" and some because of HIPAA. There is no relief requested in the objection. Specifically, it does not ask for a protective order.
At the next hearing, the State Court pointed out that he could not determine if an interrogatory was relevant unless either it was answered or dealt with through a motion for a protective order. The Court ordered production, and Silva did not raise HIPAA restrictions.
In the March 20, 2008 order, the Court ordered: "Plaintiff is cautioned by this Court to his failure to comply fully and completely with discovery may result in dismissal of his lawsuit with prejudice." So, not only was Plaintiff warned, Silva was definitely warned that things had better shape up.
Perhaps, based on McCraney's affidavit this should say "Plaintiff should have been warned."
The sole remaining Defendant High Desert filed the motion to dismiss and for default on April 4, 2008. Silva never responded. In the Order granting this motion, the Court stated "The Court has reviewed the motion and there being no response in opposition thereto finds the motion well taken."
Silva did not respond (in the record) to the Court's letter regarding a settlement facilitator. When the Court then set a status conference, Silva stated that he has not had contact with his client. He did not state, however, that he made any attempt to reach his client.
Defendant filed its Motion to Reinstate Sanctions for Failure to Make Discovery on June 19, 2009. The matter came on for hearing on August 31, 2009. The allegations of hidden bank accounts should have been very troubling to Silva and sometime between June 19, 2009 and August 31, 2009, he should have made sure that he knew whether there were such accounts and why they had not been disclosed. Instead, at the hearing he only stated he was unaware of them.
Finally, after not filing a protective order based on HIPAA, Silva never again brought the issue squarely before the Court. It was only after the Court ruled that he made indirect comments about privacy laws.
This Court finds that Attorney Silva was the root of the problem in this case. Not only did he keep the client uninformed, he affirmatively lead him to believe that everything was going smoothly. There is nothing in the extensive state court record that suggests Plaintiff intentionally lied or misrepresented anything or failed to disclose anything purposely. This Court finds that Plaintiff did not default willfully. He has his attorney's behavior as a valid excuse for the defaults.
The Court also finds that Defendant has not demonstrated any prejudice if the default judgment were set aside, other than attorney fees and a time delay. The Court can easily remedy that by conditioning any relief on the payment of Defendant's fees.
THE LAW
Removal of a case to Bankruptcy Court is governed by Federal Rule of Bankruptcy Procedure 9027.
A notice of removal shall be filed with the clerk for the district and division within which is located the state or federal court where the civil action is pending. The notice shall be signed pursuant to Rule 9011 and contain a short and plain statement of the facts which entitle the party filing the notice to remove, contain a statement that upon removal of the claim or cause of action the proceeding is core or non-core and, if non-core, that the party filing the notice does or does not consent to entry of final orders or judgment by the bankruptcy judge, and be accompanied by a copy of all process and pleadings.
Fed.R.Bankr.P. 9027(a)(1). "Promptly after filing the notice of removal, the party filing the notice shall serve a copy of it on all parties to the removed claim or cause of action." Id., § (b).
Promptly after filing the notice of removal, the party filing the notice shall file a copy of it with the clerk of the court from which the claim or cause of action is removed. Removal of the claim or cause of action is effected on such filing of a copy of the notice of removal. The parties shall proceed no further in that court unless and until the claim or cause of action is remanded.
Id., § (c). "All injunctions issued, orders entered and other proceedings had prior to removal shall remain in full force and effect until dissolved or modified by the court."
Id., § (i).
The Rooker-Feldman doctrine is not an issue in removal.
The doctrine takes its name from two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
The Rooker-Feldman doctrine . . . provides that only the [United States] Supreme Court has jurisdiction to hear appeals from final state court judgments.
Bear v. Patton,
451 F.3d 639, 641 (10th Cir. 2006). Proper removal does not constitute an appeal, de facto or otherwise, of the state court proceedings but a continuation of them.
See Freeman v. Bee Mach. Co.,
319 U.S. 448, 452,
63 S.Ct. 1146,
87 L.Ed. 1509 (1943) ("The jurisdiction exercised on removal is original not appellate."). Thus, the Rooker-Feldman doctrine has no application to a properly removed case where, as here, there is no attack on a separate and final state-court judgment.
Jenkins v. MTGLQ Investors, 218 Fed.Appx. 719, 723-24 (10
th Cir. 2007) (Unpublished.)
The federal court takes a removed case "as it finds it on removal." Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir. 1963). Therefore, if a default judgment is entered before removal, it is treated as a validly rendered default judgment in a federal proceeding.Id. at 785-86. After removal, federal law rather than state law governs the future course of the proceedings, notwithstanding any orders or judgments issued prior to removal. Granny Goose Foods, Inc. v. Brotherhood of Teamsters Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 437 (1974). Therefore, it is proper for a movant in a removed case to file a motion to set aside a default in the
federal case under Fed.R.Civ.P. 60(b). Butner, 324 F.2d at 786. Indeed, the federal court can perform any act that it could have as if the case originated in federal court. See Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248, 1252 (11th Cir. 1988) (A federal court may dissolve or modify injunctions, orders, and all other proceedings which have taken place in state court prior to removal. A state court summary judgment did not foreclose modification of the judgment in federal court.); Preaseau v. Prudential Ins. Co. of America, 591 F.2d 74, 79 (9th Cir. 1979) (Court compares removal to the situation where a case is reassigned to a successor judge after denial of a motion to dismiss or a motion for summary judgment. There would be no abuse of discretion in overruling the prior judge. The practice reflects the rule that interlocutory rulings are subject to reconsideration by the court at any time.) (Citations omitted.); Hawes v. Cart Products, Inc., 386 F.Supp.2d 681, 686 and 689 (D. S.C. 2005) (The weight of authority allows a defendant to remove a case to federal court after entry of a default judgment. It is well established that a federal district court has jurisdiction to consider a motion for relief from an order of default entered in state court.) (Citations omitted.); Laney v. Schneider Nat'l Carriers, Inc., 259 F.R.D. 562, 564 (N.D. Okla. 2009) (A federal court is free to reconsider a state court order and to treat the order as it would any interlocutory order it might itself have entered.) (Citations omitted.)
This rule is made applicable to bankruptcy by Fed.R.Bankr.P. 9024.
This Court will therefore look to federal cases and their interpretations of the Federal Rules of Civil Procedure to determine whether Plaintiff's motion to set aside should be granted. Fed.R.Civ.P. 55(c) states "Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed.R.Civ.P. 60(b) states:
(b)
Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
The Tenth Circuit has stated that Rule 60(b) should be liberally construed when substantial justice will be served. Jennings v. Rivers, 394 F.3d 850, 856 (10th Cir. 2005).
Rule 60(b)(1) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a final judgment. . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. . . ." It "is an extraordinary procedure" which "`seeks to strike a delicate balance between two
countervailing impulses: the desire to preserve the finality of judgments and the incessant command of the court's conscience that justice be done in light of all the facts.'"
Cessna Fin. Corp.[v. Bielenberg Masonry Contracting, Inc.], 715 F.2d [1442] at 1444 [10
th Cir. 1983)] (quoting
Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 401 (5th Cir. 1981) (additional internal quotation marks omitted)).
Id.
The Tenth Circuit set out some rules for dealing with Rule 60(b) motions:
Under Rule 60(b), which standards Rule 55(c) invokes when a party is seeking relief from a default judgment, a court may set aside a final judgment "[o]n motion and upon such terms as are just." Fed.R.Civ.P. 60(b). The several reasons listed in the Rule include setting aside for: "mistake, inadvertence, surprise, or excusable neglect,"
id. at (b)(1), or for: "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party."
Id. at (b)(3). It is also established that a movant must have a meritorious defense as well as a good reason to set aside the default.
Greenwood Explorations, Ltd., 837 F.2d at 427;
Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc.,
715 F.2d 1442, 1445 (10th Cir. 1983);
In re Stone,
588 F.2d 1316, 1319 (10th Cir. 1978).
United States v. Timbers Preserve, Routt County, Colorado, 999 F.2d 452, 454 (10
th Cir. 1993) (Footnote omitted).
Courts have established three requirements which must be met when setting aside a default judgment under Rule 60(b): (1) the moving party's culpable conduct did not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.
See
Meadows, 817 F.2d at 521;
INVST Fin. Group, Inc. v. Chem-Nuclear Systems, Inc.,
815 F.2d 391, 398 (6th Cir.),
cert. denied,
484 U.S. 927,
108 S.Ct. 291,
98 L.Ed.2d 251 (1987); 6 Moore, supra, ¶ 55.10[1]. The Second Circuit considers the first factor in terms of whether the default was willful.
Wagstaff-El v. Carlton Press Co.,
913 F.2d 56, 57 (2d Cir. 1990),
cert. denied,
499 U.S. 929,
111 S.Ct. 1332,
113 L.Ed.2d 263 (1991);
Davis, 713 F.2d at 915. Generally a party's conduct will be considered culpable only if the party defaulted willfully or has no excuse for the default. 6 Moore,
supra, ¶ 55.10[1]; see also
Meadows, 817 F.2d at 521 (receiving actual notice and failing to respond is culpable conduct).
Id.
The determination of whether neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission."
Pioneer Inv. Servs. Co., 507 U.S. at 395,
113 S.Ct. 1489 (discussing application of the excusable neglect standard of Fed.R.Bankr.P. 9006(b)(1)). Relevant factors include "the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith."
Id. "`[F]ault in the delay remains a very important factor-perhaps the most important single factor-in determining whether neglect is excusable.'"
United States v. Torres,
372 F.3d 1159, 1163 (10th Cir. 2004) (quoting
City of Chanute v. Williams Natural Gas Co.,
31 F.3d 1041, 1046 (10th Cir. 1994)).
Jennings, 394 F.3d at 856-57. The plain language of the rule allows relief for attorney negligence.
Id. at 856 n. 5. Finally, the Tenth Circuit has ruled that default judgments are "a harsh sanction" and that there is a strong policy favoring resolution of disputes on their merits.
Ruplinger v. Rains (In re Rains), 946 F.2d 731, 732 (10
th Cir. 1991). Because it is
such a harsh sanction, due process requires that the default be the result of willfulness, bad faith, or fault.
Id. at 733. Default judgments deprive a litigant his or her day in court and are appropriate only where a lesser sanction would not serve the interest of justice.
Id. (Citation omitted.)
Accord Sun v. Board of Trustees of the University of Illinois, 473 F.3d 799, 811-12 (7
th Cir.),
cert. denied, 551 U.S. 1114 (2007) (A default judgment is a "weapon of last resort" that is appropriate only when a party willfully disregards pending litigation. Default gives the other party a windfall; if there is a problem with discovery caused by an attorney the preferred course is to assess increasing penalties on the attorney before defaulting the client.)
DISCUSSION
Under Timbers Preserve, Routt County, 999 F.2d at 454, the Plaintiff must establish three conditions to set aside the default judgment: (1) his culpable conduct did not cause the default; (2) he has a meritorious defense; and (3) High Desert will not be prejudiced by setting aside the judgment.
As to the first condition (culpability), this Court found above that Plaintiff was not culpable. The default was actually caused by both 1) attorney negligence or misconduct or failures, and 2) misrepresentations made to the State Court that impacted its decision. The Court finds that, fundamentally, Defendant's attorney, in his zealousness, overstated the facts and Plaintiff's attorney underzealously did not bring to light certain facts to either the State Court or his client. Specifically, Defendant stated for a certainty that Plaintiff had undisclosed accounts from which he transferred $28,705 and $11,678. Silva did not defend his client by disagreeing; instead he merely stated he knew nothing about them, which is very different from an affirmative statement that there were no other accounts. In fact, according to Plaintiff's affidavit, those were the ending balances in the account after a transfer of $8,032.53 from a disclosed account and a deposit (not transfer) from a Florida business (not Plaintiff's business) of $3,000. This Court is not finding that the misrepresentations were intentional (it has insufficient information to make that determination), but the misrepresentations did influence the State Court.
Second, this Court finds that the State Court was mislead by statements that suggested it had previously ruled on the merits of a motion regarding HIPAA disclosure. "McCraney continues to assert HIPPA even though that claim was previously rejected by this Court on the Second Motion to Compel, and Third Motion to Compel and by this Court's 13 May order." Doc 7-1, p 7. First, this Court finds that Attorney Silva never properly brought the HIPAA motion before the State Court. This Court has reviewed the state file and finds no notice of a hearing on the motion. Second, as no party has provided transcripts, the Court does not know the content of the exact arguments made to the State Court, but can assume certain things from the orders that resulted from the hearings. There were few references to HIPAA in the FTR Reporter's Notes. Third, the Order regarding the Second Motion to Compel, March 20, 2008, has no specific reference to HIPAA. Doc 6-1, p 36. There is only a blanket order to answer each and every interrogatory fully and completely in a non-evasive manner and to produce all documents requested. Id. Fourth, "the May 13 order", doc 7-1, p 22, has no specific reference to HIPAA. The order states: "Plaintiff shall answer all discovery requests within thirty (30) days of this order and the failure to comply is grounds to reinstate the discovery sanction and enter a default against Plaintiff and in favour of Defendant." And, finally, the state court record does not contain an order dealing with HIPAA issues. "There are three ways in which Defendant may comply with 45 C.F.R. § 164.512(e)(1): `[O]btaining a court order,' `sending a subpoena or discovery request where plaintiff has been given notice of the request,' or `sending a subpoena or discovery request where reasonable effort has been made to obtain a qualified protective order.'"Croskey v. BMW of North America, 2005 WL 4704767 at *2 (E.D. Mich. 2005). None of these three methods was used in this case. Plaintiff therefore properly worried about disclosing the information. HIPAA calls for potentially severe penalties for its violation. See 42 U.S.C. § 1320d-5.
45 C.F.R. § 164.512 sets out standards for disclosures of individually identifiable health information. Subsection (e) states:
(e) Standard: Disclosures for judicial and administrative proceedings.
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i)
In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or
(ii)
In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request;
or
(B)
The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.
(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity receives satisfactory assurances from a party seeking protecting health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address);
(B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal; and
(C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and:
(1) No objections were filed; or
(2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.
(iv)
For the purposes of paragraph (e)(1)(ii)(B) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute;
or
(B)
The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
(v) For purposes of paragraph (e)(1) of this section,
a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.
(vi) Nothwithstanding paragraph (e)(1)(ii) of this section, a covered entity may disclose protected health information in response to lawful process described in paragraph (e)(1)(ii) of this section without receiving satisfactory assurance under paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(1)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(1)(iv) of this section.
(2) Other uses and disclosures under this section. The provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information. (Emphasis added.)
The two factors listed above easily implicate either Rule 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect) or Rule 60(b)(3) (misrepresentation). Alternatively, the quality of the attorney's representation may implicate Rule 60(b)(6) (any other reason that justifies relief.) Therefore, condition 1 is satisfied. Compare Cashner v. Freedom Stores, Inc., 98 F.3d 572, 578 (10th Cir. 1996) (Rule 60(b) relief is not available when a party takes deliberate action upon advice of counsel and misapprehends the consequences of the action.) (Citations omitted.)
Generally, clients are held responsible and accountable for the acts and omissions of their attorneys. Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 396 (1993). However, at least four circuit courts of appeals have adopted the rule that a client is not responsible for an attorney's gross negligence. Community Dental Services v. Tani, 282 F.3d 1164, 1169 (9th Cir. 2002) (Ninth circuit joins the Third, Sixth and Federal Circuits allow Rule 60(b) relief for an attorney's gross negligence.) See also D'Angelo v. State Farm Fire Cas. Co., 32 Fed.Appx. 604, 605 (2nd Cir. 2002) (Gross negligence of attorney may be grounds for Rule 60(b)(6) relief if exceptional circumstances are shown such as mental disorder or misconduct such that there was a "constructive disappearance" or inability to provide adequate representation.)
Condition 2 requires a meritorious defense. At the stage of ruling on a Rule 60(b) motion, the movant is not required to show that he will actually prevail on the merits if the judgment is set aside. Brendle's Inc. v. Dazey Corp. (In re Brendle's Inc.), 222 B.R. 770, 772 (Bankr. M.D. N.C. 1997). Rather, there must be allegations under which, if true, the movant could prevail on some or all of his claims. Id. at 773.
The counterclaim in this case appears at doc 6-1, p 32. It is a bare bones complaint that alleges the existence of a contract; a breach of the contract for four reasons: 1) failure to act in good faith, 2) failure to carry out duties, 3) Plaintiff's spending the night with an employee and 4) the employment of a High Desert employee; resulting loss; and a noncompetition agreement. The contract is the same contract that Plaintiff sued on. Under Plaintiff's version Defendant breached the contract. Plaintiff claims that he gave written notice of his intent to leave employment as allowed by paragraph 9(b), and that Defendant fired him the next day in violation of paragraph 9(b) causing loss. The facts are not intensely complex or disputed. The judgment will probably be based in major part on a construction of the contract. The Court finds that Plaintiff's complaint itself shows a sufficient meritorious defense to the counterclaim in this case. Condition 2 is met.
Condition 3 requires that High Desert not be prejudiced by setting aside the judgment. As noted above, any financial prejudice for attorney fees can be remedied by requiring Plaintiff to pay Defendant's fees and costs for dealing with the Motion to Set Aside. There was some delay from Plaintiff's and Plaintiff's attorney's conduct. Delay alone, however, is not prejudice.SLC Turnberry, Ltd. v. The American Golfer, 240 F.R.D. 50, 55 (D. Ct. 2007).
CONCLUSION
For the reasons set forth above, the Court will issue an Order Granting Plaintiff's Motion to Set Aside Default Judgment (doc 17) and set a pretrial conference.
Date Entered on Docket: September 29, 2010