acuity insurance v. gartner plumbing

Vermont Superior Court
Filed o4 o5 24
Chittendeé Uéit

VERMONT SUPERIOR COURT £9 £1. CIVIL DIVISION
Chittenden Unit Case No. 23-CV-03931
175 Main Street, PO BOX 187
Burlington VT 05402
802-863-3467 gfi
WWW.vermontjudiciary.org

Acuity Insurance Company v. Gartner Plumbing & Heating LLC D / B / A ROTO-
ROOTER

ENTRY REGARDING MOTION
Title: Motion to Vacate Judgment (Motion: 2)
Filer: Saul O. Leopold
Filed Date: February 14, 2024

This case was scheduled for trial on March 26. Defendant appeared. Plaintiff and

Plaintiffs counsel failed to appear. The court normally has a five-minute rule: when a

party fails to appear within five minutes of the scheduled hearing time, the court

proceeds without them. Here, because it was a trial, the court generously waited fifteen

minutes, to no avail. Thus, Plaintiff having presented zero evidence, the case was

dismissed with prejudice. Plaintiff now moves to reopen.

Plaintiffs explanation for missing the trial is that counsel had trouble finding

parking. Seriously? “Trouble parking” is not covered by Rules 59 and 60. Under Rule

59, “the general grounds for a new trial are that the verdict is against the weight of the

evidence, that the damages are excessive, or that for other reasons the trial was not fair

. . . [T]he motion also may raise questions of law arising out of substantial errors in the

admission or rejection of evidence or the giving or refusal of instructions.”

Wright & Miller, 11 Fed. Prac. & Proc. Civ. § 2805 (3d ed.). Nor is Rule 60 designed for
such errors by counsel. John A. Russell Corp. V. Bohlig, 170 Vt. 12, 24 (1999) (Rule 60(b)

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“should be applied only in extraordinary circumstances.”). The only case the court has

found addressing anything remotely similar involved a pro se party who had overslept as

a result of sleeping medication and missed a scheduling hearing. Denman v. Shubow,

413 F.2d 258, 259 (1st Cir. 1969). The court reopened the case, but noted that it was not

a case in which “the trial was scheduled to begin that day. It was only the assignment

day.” Id.

Unlike Denman, this was a scheduled trial (and involved a lawyer). “An action

may be dismissed under Rule 41(b) if the plaintiff, without offering some explanation

that is satisfactory to the court, fails to appear for trial or a significant hearing on the

scheduled date, is not ready to present his or her case at trial, or otherwise refuses to

proceed at the trial.” Cegalis v. Knutsen, No. 22-AP-280, 2023 WL 3271524, at *4 (Vt.

May 5, 2023)(quoting 9 C. Wright & A. Miller, Federal Practice & Procedure § 2370 (4th

ed.)). As the Second Circuit has noted, “[o]ne naturally expects the plaintiff to be

present and ready to put on her case when the day of trial arrives. A litigant’s day in

court is the culmination of a lawsuit, and trial dates—particularly civil trial dates—are an

increasingly precious commodity in our nation’s courts.” Lewis v. Rawson, 564 F.3d

569, 580 (2d Cir. 2009) (quoting Moffitt v. Ill. State Bd. of Educ., 236 F.3d 868, 872,

873 (7th Cir. 2001)); see also, Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 364 (6th Cir.

1999) (“Where a plaintiff does not appear at the trial date . . . Rule 41(b) dismissal is

particularly appropriate. Indeed, such behavior constitutes the epitome of a ‘failure to

prosecute.’”); Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993) (“Dismissal for

failure to prosecute . . . is usually applied when the plaintiff is not ready for trial or fails

to appear.”).

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23-CV-03931 Acuity Insurance Company v. Gartner Plumbing & Heating LLC D/B/A ROTO-ROOTER
Moreover, there is a strong interest in the finality of judgments. Adamson v.

Dodge, 174 Vt. 311, 327 (Vt. 2002) (“Interests of finality require that relief from a

previous judgment should be granted only in extraordinary circumstances.”); Altman v.

Altman, 169 Vt. 562, 564 (1999) (mem.) (The “interest in promoting the certainty and

finality of judgments imposes limits on the indulgence which may be sought in relief of

final orders.”).

This is really a case of inexcusable neglect. Court is not kindergarten. Lawyers are

obliged to manage their schedules so that they get to court on time. Most attorneys

would arrive at court significantly in advance of a trial to assure time to set up and to be

ready to start at the appointed time. Normal incidents of life such as bad traffic, a

child’s tantrum, snowy roads, spilled coffee, or challenging parking are reasons to allow

extra time getting to court. They are not reasons to reschedule a trial that the lawyer

missed due to a failure to allow appropriate time. If they were, court schedules would

mean nothing. Lawyers are expected to be professionals and to manage their schedules

to be in court when scheduled. A failure to do so is not grounds for a new trial.

While such a result may seem harsh, courts must take “an appropriately hard line

when it comes to determining when neglect that stems from factors totally within the

control of a party or its attorney is ‘excusable.’” In re Town of Killington, 2003 VT 87A,

¶ 17, 176 Vt. 60. As the Second Circuit has noted:

We operate in an environment . . . in which substantial rights may
be, and often are, forfeited if they are not asserted within time
limits established by law. Judges, of course, make mistakes. We
. . . have considerable sympathy for those who, through mistakes—
counsel’s inadvertence or their own—lose substantial rights in that
way. . . [However,] the legal system would groan under the weight
of a regimen of uncertainty in which time limitations were not
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rigorously enforced—where every missed deadline was the
occasion for the embarkation on extensive trial and appellate
litigation to determine the equities of enforcing the [time] bar.
Silivanch v. Celebrity Cruises, Inc., 333 F. 3d 355, 367-68 (2d Cir. 2003). Citing

Silivanch, the Vermont Supreme Court has noted: “This consideration is especially

compelling in civil cases with sophisticated parties represented by knowledgeable

counsel, such as the case here.” LaFrance Architects v. Point Five Development South

Burlington, LLC, 2013 VT 115, ¶ 10, 195 Vt. 543.

Order

The motion is denied.

Electronically signed on April 3, 2024 pursuant to V.R.E.F. 9(d).

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