Thomas J. Tucker
Judge Thomas J. Tucker
OPINION AND ORDER DENYING
DEFENDANTS' MOTION FOR RECONSIDERATION
This adversary proceeding is before the Court on "Defendants' Motion to Set Aside Default Judgment," filed on March 30, 2012 (Docket # 31, the "Motion"), which this Court construes as a motion for reconsideration of, and for relief from, the March 19, 2012 Order Granting Default Judgment (Docket # 28, the "Default Judgment"), and
The Court concludes that neither a response by Plaintiff nor a hearing is necessary on the Motion, and that the Motion should be denied, for the following reasons.
First, the Court finds the Motion fails to demonstrate a palpable defect by which the Court and the parties have been misled, and that a different disposition of the case must result from a correction thereof. See Local Rule 9024-1(a)(3).
Second, the Court finds that the factual allegations in the Motion, even if assumed to be true, and the legal arguments in the Motion, do not establish excusable neglect under Fed.R.Civ.P. 60(b)(1), FedR.Bankr.P. 9024, or any other valid ground for relief from the Default Judgment.
Third, to the extent the Default Judgment was caused by neglect or mistake by Defendants' attorney, rather than personally by Defendant Clarence Bennett, any such neglect or mistake by Defendants' attorney is chargeable to both of the Defendants, for purposes of determining whether any such neglect or mistake is excusable. See, e.g., Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 396-97 (1993)(in determining whether "excusable neglect" is shown, "the proper focus is upon whether the neglect of [the movants] and their counsel was excusable" (italics in original)).
Fourth, the circumstances described in the Motion are not sufficient to establish that defense counsel's neglect or mistake can be deemed "excusable" under Civil Rule 60(b)(1). See, e.g., Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. at 398 ("[i]n assessing the culbability of respondent's counsel, we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date."); Symbionics Inc. v. Ortlieb, 432 Fed.Appx. 216, 2011 W.L. 2076335 (4th Cir. May 23, 2011) at *3 ("[w]e find nothing extraordinary or unusual about counsel's calendaring error that should relieve Symbionics of its duty to comply with the time limit of Rule 4(a)(1). . . . [T]his neglect is precisely the sort of 'run- of-the-mill inattentiveness by counsel' that we have consistently declined to excuse in the past."); Allied Domecq Retailing USA v. Schultz (In re Schultz), 254 B.R. 149, 153-54 (B.A.P. 6th Cir. 2000)("courts have consistently held that ''clerical or office problems' are simply not a sufficient excuse for failing to file a notice of appeal within the ten day period.'")(citing numerous cases).
As stated by the Court on the record during the March 19, 2012 final pretrial conference, the Court entered the Default Judgment because (1) neither of the Defendants nor their counsel attended the final pretrial conference; and (2) Defendants and their counsel failed to cooperate in the preparation of a proposed joint final pretrial order, see L.B.R. 7016-1(c). Defense counsel knew of the date and time of the March 19 final pretrial conference at all times from January 30, 2012 forward, and knew of the requirements of L.B.R. 7016-1 at all times. And the Scheduling Order entered on January 30, 2012 (Docket # 14) specifically required the parties to file and submit a proposed joint final pretrial order, "prepared in accordance with L.B.R. 7016-1," no later than March 14, 2012 (the Wednesday before the March 19, 2012 final pretrial conference.) The Court's decision to enter the Default Judgment was correct.
Defendants' counsel knew these things from the Court's local rules, from attending the January 30, 2012 scheduling conference, and from the provisions of the Scheduling Order entered that same day (Docket # 14).
The Court notes that the Motion offers no excuse whatsoever for Defendants' counsel's failure to cooperate with Plaintiff's counsel in preparation of a proposed joint final pretrial order, in the days leading up to the March 14, 2012 filing deadline.
For these reasons,
IT IS ORDERED that the Motion should be, and is, DENIED.
The Court notes that Defendants did not file any objection to the amount of damages requested by Plaintiff, or to Plaintiff's itemization regarding damages. Any such objections by Defendants were due to be filed no later than March 30, 2012. (See Order Granting Default Judgment, etc., filed March 19, 2012 (Docket # 28) at ¶ 3(C)). Under the terms of the March 19, 2012 Default Judgment, then, the Court will now consider Plaintiff's itemization, and will either set a hearing on it (if the Court deems a hearing to be necessary) or enter an appropriate judgment.
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Thomas J. Tucker
United States Bankruptcy Judge