Aghdasi v. Saberin

2015 UT App 73

THE UTAH COURT OF APPEALS

KAVEH AGHDASI AND CINDY AGHDASI,
Plaintiffs and Appellants,
v.
PAYAM SABERIN AND CITY CAB COMPANY, INC.,
Defendants and Appellee.

Memorandum Decision
No. 20140173-CA
Filed March 26, 2015

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 130900379

J. Kent Holland, Attorney for Appellants
Bruce C. Burt, Attorney for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.

DAVIS, Judge:

¶1 Kaveh and Cindy Aghdasi challenge the district court’s
denial of their rule 60(b) motion to set aside a summary
judgment in favor of City Cab Company, Inc. (City Cab). We
affirm.

¶2 The Aghdasis filed suit against Payam Saberin and City
Cab after Saberin, a cab driver who leased his cab from City Cab,
physically attacked Kaveh Aghdasi, another cab driver.
Following discovery, City Cab filed a motion for summary
judgment and a supporting memorandum using the district
court’s electronic filing (e-filing) system. The district court
received a ‚Return of Electronic Notification‛ indicating that the
Aghdasis’ attorney had received the electronic notice of the
Aghdasi v. Saberin

motion for summary judgment via email at 2:46 p.m. on October
24, 2013. The court also received a notice confirming the
attorney’s receipt of the supporting memorandum at 2:49 p.m.
the same day. The Aghdasis did not respond to the motion. City
Cab filed a request to submit the summary judgment motion for
decision, and court records indicate that the Aghdasis’ attorney
received electronic notice of this request at 11:20 a.m. on
December 12, 2013.

¶3 The district court granted the motion for summary
judgment on December 13. A copy of the ruling was sent to the
Aghdasis’ attorney electronically on December 23. On December
24, the Aghdasis filed a rule 60(b) motion to set aside the
summary judgment on grounds of excusable neglect. See Utah R.
Civ. P. 60(b). The motion was supported by the affidavit of the
Aghdasis’ attorney, in which he claimed that he never saw the
electronic notices and was unaware of the motion for summary
judgment until he received the district court’s order granting it.1
The attorney speculated that the motion for summary judgment
and supporting memorandum must have been accidentally
deleted or sent to a spam folder. The district court denied the
motion, determining that the court’s records demonstrated that
the Aghdasis’ attorney had received the motion for summary
judgment and supporting memorandum and that the attorney
had failed to adequately explain why he was unaware of the
filings. The Aghdasis appeal.

¶4 The Aghdasis first assert that the district court erred in
denying their rule 60(b) motion. We review a district court’s
denial of a rule 60(b) motion for abuse of discretion. Katz v.

1. At oral argument, the Aghdasis’ attorney indicated that he
had received the electronic notice of the request to submit for
decision on December 12 but that he did not immediately open
it.

20140173-CA 2 2015 UT App 73
Aghdasi v. Saberin

Pierce, 732 P.2d 92, 93 (Utah 1986) (per curiam). ‚A district court
abuses its discretion only when its decision was against the logic
of the circumstances and so arbitrary and unreasonable as to
shock one’s sense of justice . . . [or] resulted from bias, prejudice,
or malice.‛ Jones v. Layton/Okland, 2009 UT 39, ¶ 27, 214 P.3d 859
(alteration and omission in original) (citation and internal
quotation marks omitted).

¶5 ‚[T]here is no specific legal test for excusable neglect.‛ Id.
¶ 18. Rather, ‚[t]he equitable nature of the excusable neglect
determination requires that a district court be free to consider all
facts it deems relevant to its decision and weigh them
accordingly.‛ Id.; see also id. ¶ 17 (‚By their nature, equitable
inquiries are designed to be flexible, taking into account all
relevant factors in light of the particular circumstances.‛).
Nevertheless, ‚excusable neglect requires some evidence of
diligence in order to justify relief.‛ Id. ¶ 20.

¶6 Although we have not yet had the opportunity to
consider whether excusable neglect exists where an attorney
claims to have misplaced an e-filed document, ‚Utah courts have
found no abuse of discretion in a trial court’s denial of a motion
to set aside a default judgment where the only excuse offered by
a party for its untimely response was that the motion requiring
the response was inadvertently misplaced within a counsel’s
office.‛ Stevens v. LaVerkin City, 2008 UT App 129, ¶ 27, 183 P.3d
1059 (citing Mini Spas, Inc. v. Industrial Comm’n, 733 P.2d 130, 132
(Utah 1987) (per curiam) (rejecting counsel’s excuse ‚that the
notice was ‘inadvertently stuck together in the [plaintiff]’s
drawer’‛)); see also id. ¶ 28 (holding that the disappearance of a
motion within an attorney’s office did not justify setting aside a
summary judgment on grounds of excusable neglect). We see
little difference between the inadvertent loss or misplacement of
an electronic document and the inadvertent loss or
misplacement of a physical document.

20140173-CA 3 2015 UT App 73
Aghdasi v. Saberin

¶7 Other courts that have considered this issue have been
largely unsympathetic when faced with attorneys attempting to
blame failures on computer glitches. See W. Kelly Stewart & Jef-
frey L. Mills, E-Filing or E-Failure: New Risks Every Litigator Should
Know, For the Defense, June 2011, at 28, 28–33, 88, available at
http://www.jonesday.com/files/Publication/efd9d946-2272-4493-
9bb6-312e53bb8419/Presentation/PublicationAttachment/9398f37
a-c4a0-4338-8a4e-35cdf2d69900/FTD-1106-StewartMills.pdf (col-
lecting cases relating to a variety of e-filing errors, including
cases where a party sought relief on grounds of excusable
neglect). For example, when the United States Court of Appeals
for the D.C. Circuit was faced with an excusable neglect
argument based on counsel’s failure to receive electronic notice
of the defendant’s motion to dismiss, that court deemed the
excuse ‚an updated version of the classic ‘my dog ate my
homework’ line,‛ concluding that ‚[i]mperfect technology may
make a better scapegoat than the family dog in today’s world,
but not so here.‛ Fox v. American Airlines, Inc., 389 F.3d 1291,
1293–94 (D.C. Cir. 2004) (determining that ‚[r]egardless whether
he received the e-mail notice,‛ the plaintiffs’ attorney ‚remained
obligated to monitor the court’s docket‛).

¶8 It is clear from the court’s records that the Aghdasis’
attorney received the emails, even if he did not actually see or
read them. The fact that the attorney then misplaced the emails
either through accidental deletion or due to spam settings on his
email account does not demonstrate the exercise of diligence on
the part of the attorney, particularly in light of the fact that the
attorney apparently misplaced at least two separate emails and
admittedly neglected to read a third. The attorney had received
e-filings in connection with this case before the motion for
summary judgment was filed and electronically received the
request to submit and the court’s order granting the summary
judgment motion, but for whatever reason, he missed the emails
notifying him of the summary judgment motion and
memorandum in support. The attorney should have made the

20140173-CA 4 2015 UT App 73
Aghdasi v. Saberin

same effort to be aware of incoming electronic filings as he
would have with paper filings. We cannot say that the court’s
rejection of the Aghdasis’ excusable neglect argument,2 under
the circumstances of this case, ‚was against the logic of the

2. Because the summary judgment was entered without the
input of the Aghdasis, they characterize it as a ‚default‛
summary judgment. Consequently, the district court also
examined whether the Aghdasis had alleged a meritorious
defense, an element of a rule 60(b) motion to set aside a default
judgment, see Erickson v. Schenkers Int’l Forwarders, Inc., 882 P.2d
1147, 1148–49 (Utah 1994), and concluded that the Aghdasis
could not rely solely on the allegations of their complaint to
proffer a meritorious defense in the context of a motion to set
aside summary judgment, but cf. Judson v. Wheeler RV Las Vegas,
LLC, 2012 UT 6, ¶¶ 10, 23, 270 P.3d 456 (clarifying that ‚[t]he
assertion of a meritorious defense under rule 60(b) requires only
a clear and specific proffer of a defense that, if proven, would
preclude total or partial recovery by the claimant or
counterclaimant,‛ that the proffer ‚is subject to a liberal pleading
standard,‛ and that it is unnecessary to set forth specific facts
supporting those allegations (citation and internal quotation
marks omitted)). Because other cases reviewing motions to set
aside summary judgment have not considered whether there
was a meritorious defense, see, e.g., Jones v. Layton/Okland, 2009
UT 39, 214 P.3d 859; Stevens v. LaVerkin City, 2008 UT App 129,
183 P.3d 1059, and because we conclude that the district court
did not abuse its discretion in concluding that the Aghdasis had
not established excusable neglect, we do not find it necessary to
examine the district court’s determination that the Aghdasis
failed to proffer a meritorious defense to summary judgment
and express no opinion on whether a showing of a meritorious
defense might be necessary in the context of a rule 60(b) motion
to set aside a ‚default‛ summary judgment.

20140173-CA 5 2015 UT App 73
Aghdasi v. Saberin

circumstances‛ or ‚so arbitrary and unreasonable as to shock
one’s sense of justice.‛ See Jones, 2009 UT 39, ¶ 27 (citation and
internal quotation marks omitted).

¶9 The Aghdasis also assert that City Cab’s counsel violated
his obligations under the Utah Standards of Professionalism and
Civility by failing to notify the Aghdasis’ attorney of a potential
‚default‛ summary judgment and that the district court abused
its discretion by failing to address the violation. See Utah R. Jud.
Admin. 14-301(16) (‚Lawyers shall not cause the entry of a
default without first notifying other counsel whose identity is
known, unless their clients’ legitimate rights could be adversely
affected.‛). However, even assuming that City Cab’s counsel
violated these standards,3 they are not mandatory and provide
no basis for the Aghdasis to challenge the court’s decision.

Our standards of professionalism and civility often
promulgate guidelines that are more rigorous than
those required by the Utah Rules of Civil
Procedure and the Utah Code of Professional
Conduct . . . . The rules of civil procedure establish
minimum requirements that litigants must follow;
the standards of professionalism supplement those
rules with aspirational guidelines that encourage
legal professionals to act with the utmost integrity
at all times.

Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 40,
238 P.3d 1035 (emphasis added). While compliance with the
Utah Standards of Professionalism and Civility is encouraged of

3. It is possible that counsel for City Cab considered his
obligation fulfilled when he received confirmation that the
Aghdasis’ counsel had received electronic notice of City Cab’s
request to submit the summary judgment motion for decision.

20140173-CA 6 2015 UT App 73
Aghdasi v. Saberin

all attorneys, an attorney’s failure to comply is not grounds for
setting aside a judgment. See id. ¶ 43 (encouraging lawyers to
comply with the Standards and suggesting that failure to comply
may leave lawyers open ‚to bar complaints or other disciplinary
consequences‛ when that failure runs afoul of the Utah Rules of
Professional Conduct).

¶10 In sum, the district court did not abuse its discretion in
ruling that the attorney’s misplacing the electronic notices did
not constitute excusable neglect. We further conclude that the
district court was not required to consider the Utah Standards of
Professionalism and Civility in determining whether to set aside
summary judgment. Accordingly, we affirm.

20140173-CA 7 2015 UT App 73