Wheaton v. Robert H. Irwin Motors, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Edward Wheaton,
Plaintiff
v. 	Case No. 20-cv-925-SM
Opinion No. 2022 DNH 019
Robert H. Irwin Motors, Inc.,
d/b/a Irwin Toyota; Rick Glidden;
Chris Irwin; Edward Kelly;
Ronald O’Connor; and Wayne Thayer,
Defendants
O R D E R
In September of 2021, in response to plaintiff’s repeated
failures to provide requested discovery, defendants filed a
motion seeking sanctions. 	Plaintiff did not object or otherwise
respond. 	That prompted the court to enter the following order:
Plaintiff has not responded to the motion for
sanctions, and seems to signal a general failure to
prosecute this litigation. 	Plaintiff shall file a
written response to the motion on or before November
8, 2021, and, in addition, shall show cause why the
case should not be dismissed for failure to prosecute.
Order dated October 12, 2021. 	Again, however, plaintiff
remained silent. 	Accordingly, the court entered the following
order, dismissing plaintiff’s complaint.
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Plaintiff having failed to respond to the pending
motion for sanctions as directed by the court’s order
dated October 12, 2021, and having failed to show
cause why this case should not be dismissed for
failure to prosecute, the motion is granted to the
extent that the case is dismissed for failure to
comply with the court’s order and failure to
prosecute. 	No award of attorney’s fees is made in
that rescheduling and pursuing discovery as described
was not entirely outside the norm, and dismissal is an
adequate sanction for plaintiff’s failure to prosecute
generally.
Order dated November 10, 2021. 	That same day, judgment was
entered in accordance with that order and the case was closed.
More than two months later, counsel for plaintiff filed a
Motion to Vacate Judgment, invoking the provisions of Rule
60(b)(1) of the Federal Rules of Civil Procedure. 	Defendants
object, saying plaintiff has failed to establish entitlement to
the relief sought. 	As explained below, the court will defer
ruling on the motion to vacate and afford plaintiff the
opportunity to file a supplemental memorandum of law addressing
legal and factual questions left unresolved by counsel’s initial
filing.
Discussion
Rule 60(b)(1) of the Federal Rules of Civil Procedure
provides that, “On motion and just terms, the court may relieve
a party or its legal representative from a final judgment,
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order, or proceeding for the following reasons: mistake,
inadvertence, surprise, or excusable neglect.”
The only document submitted in support of plaintiff’s
motion to vacate judgment is an affidavit from his counsel, in
which counsel testifies that:
On or about January 06, 2021, I saw an email in my
spam folder from nef@nhd.uscourts.gov. 	The email was
regarding a Notice of Electronic Filing that a Motion
for Sanctions against Plaintiff and an Order was
entered by the Court.
The Order stated that Plaintiff shall file a written
response to the motion on or before November 08, 2021.
On November 10, 2021, when the Court did not receive a
response from the Plaintiff, a Judgment was made to
dismiss the case.
Due to the email being sent inadvertently to my spam
folder, it was overlooked.
I never received a notification of Defendants filing
of their Motion for Sanctions against the Plaintiff
that was filed on or about September 10, 2021.
Affidavit of Roger A. Peace (document no. 25-1) at paras. 3-7
(emphasis supplied).
Counsel’s affidavit is both short on specifics and
confusing. 	There are four relevant documents at issue here.
1. 	Defendant’s Motion for Sanctions (document no.
23), filed on September 10, 2021.
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2. 	The court’s order directing plaintiff’s counsel
to respond to the motion for sanctions and show
cause why the case should not be dismissed for
failure to prosecute, entered on October 12,
2021.
3. 	The court’s order dismissing plaintiff’s case for
failure to comply with the order of October 12
and for failure to prosecute, entered on November
10, 2021; and
4. 	The judgment (document no. 24) in accordance with
the court’s dismissal order, entered on November
10, 2021.
Each appears to have been properly entered on the court’s
electronic docket, with copies emailed to the registered
addresses of all counsel of record. 	See Defendants’ Memorandum
(document no. 26), Exhibits A through D.
Counsel asserts, without elaboration, that he “never
received” notice that defendants had filed a motion for
sanctions. 	But beyond that, counsel’s claims are vague. 	In
particular, it is entirely unclear which “email” from the court
he claims was directed to his “spam” folder. 	See Peace
Affidavit at para. 6. 	As the court interprets counsel’s
affidavit, he is representing that notice of the court’s order
dated October 12 and directing him to show cause why plaintiff’s
case should not be dismissed was routed to his “spam” folder
(where, he says, he discovered it months later). 	That
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interpretation is supported by an email submitted by defendants,
which they say was received from plaintiff’s counsel on January
6, 2022. 	In it, plaintiff’s counsel says, “Gentlemen, I just
found an email in my spam folder from the court from October. 	I
never saw this until now. 	Clearly I need to address this. 	Are
you available for a call?” 	Email from Roger A. Peace (document
no. 27-2) (emphasis supplied).
What counsel does not address is why he failed to promptly
respond to either the court’s order dismissing plaintiff’s case
(entered on November 10, 2021) or the judgment that was entered
separately on the same day – notices of which were sent to his
registered email address. 	He did not file the pending motion to
vacate judgment until more than two months after those documents
issued.
Conclusion
At this point, counsel for plaintiff has failed to
demonstrate that his client is entitled to the relief sought
under Rule 60(b)(1). 	See generally Skrabec v. Town of N.
Attleboro, 878 F.3d 5, 9 (1st Cir. 2017); Rivera-Velazquez v.
Hartford Steam Boiler Inspection & Ins. Co., 750 F.3d 1, 4 (1st
Cir. 2014); Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33,
38–39 (1st Cir. 2013).
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Nevertheless, because dismissal is a severe sanction, the
court will afford plaintiff’s counsel another opportunity to
demonstrate entitlement to relief under Rule 60(b)(1). 	On or
before March 18, 2022, plaintiff’s counsel shall file a
supplemental memorandum of law in which he responds - in detail,
with supporting documentation, and with appropriate citations to
legal authority - to the arguments advanced by defendants in
their opposition memoranda (documents no. 26 and 27). 	In
particular, counsel shall address the following specific
questions:
1. 	How the relief sought in the motion to vacate can
be reconciled with counsel’s professional
obligation to independently monitor the court’s
docket. 	See, e.g., Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168–69 (1st Cir. 2016)
(noting that an attorney’s failure to monitor the
court’s docket is not “excusable neglect” under
Rule 60(b)(1)).
2. 	How counsel can overcome the presumption that a
document properly submitted to the court’s
electronic-filing system was distributed to, and
received by, all registered counsel in the case.
See, e.g., Am. Boat Co. v. Unknown Sunken Barge,
418 F.3d 910, 913 (8th Cir. 2005); Dempster v.
Dempster, 404 F. Supp. 2d 445, 449 (E.D.N.Y.
2005). 	See generally Fed. R. Civ. P. 5(b)(2)(E).
3. 	How counsel can reconcile the relief requested
with precedent holding that the misdirection of
court email into an attorney’s “spam” folder is
insufficient cause to support relief under Rule
60(b). 	See, e.g., Trevino v. City of Fort Worth,
944 F.3d 567, 572 (5th Cir. 2019) (“Emails
mistakenly going to a spam folder do not merit
Rule 60(b) relief.”); Hill v. World Class Auto.
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Corp., No. 06-CV-2496 SLT RLM, 2008 WL 4809445,
at *4 (E.D.N.Y. Nov. 4, 2008) (“Unsurprisingly,
courts have repeatedly rejected the argument that
the lack of actual notice due to problems with
spam overrides an attorney’s obligation to
monitor the docket.”).
Defendants may respond to plaintiff’s supplemental memorandum
within 14 days of its filing.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
February 23, 2022
cc: 	Roger A. Peace, Jr., Esq.
Paul T. Fitzgerald, Esq.
Arthur E. Maravelis, Esq.
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