United States District Court, N.D. Alabama, Middle Division
JAMES A. BRIDGES, Plaintiff,
COOK'S PEST CONTROL, Defendant.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
the Court is Plaintiff James A. Bridges's Motion To
Reconsider (the “Motion”). (Doc. 8). Defendant
Cook's Pest Control (“CPC”) responded. (Doc.
9). The Motion is ripe for review and, for the reasons stated
in today's opinion, is due to be
Eleventh Circuit has extensively discussed the excusable
Rule 60(b)(1) of the Federal Rules of Civil Procedure
authorizes a court to relieve a party from a final judgment
or order upon a showing of “mistake, inadvertence,
surprise, or excusable neglect.” “Rule 60(b)
motions are directed to the sound discretion of the district
court, and we will set aside the denial of relief from such
motion only for abuse of that discretion.” Cheney
v. Anchor Glass Container Corp., 71 F.3d 848, 849 n. 2
Excusable neglect is generally an “equitable
inquiry” based upon the particular circumstances of the
case. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1495, 123
L.Ed.2d 74 (1993). In Pioneer, the Court held that
an attorney's inadvertent failure to timely file a proof
of claim can constitute excusable neglect under Bankruptcy
Rule 9006(b)(1). Looking to other rules for guidance on the
meaning of “excusable neglect, ” the Court
considered Rule 60(b)(1) and observed that “for
purposes of Rule 60(b), ‘excusable neglect' is
understood to encompass situations in which the failure to
comply with a filing deadline is attributable to
negligence.” Id. at 394, 113 S.Ct. at 1497.
The Court identified four factors pertinent to the
determination: “the danger of prejudice to the
[opposing party], the length of the delay and its potential
impact on the 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. at 395, 113 S.Ct. at 1498.
This Court applied the Pioneer factors in Cheney
v. Anchor Glass Container Corp., 71 F.3d 848 (11th
Cir.1996), holding that the plaintiff's counsel's
late filing of a request for a trial de novo
following a non-binding arbitration award was excusable
neglect. The delayed filing resulted from a miscommunication
between the plaintiff's lead counsel and his associate
who handled the arbitration while the lead counsel was on
vacation-each had assumed that the other had filed a demand
for trial de novo. Id. at 849. The court
held that the district court abused its discretion in failing
to find excusable neglect. We noted that the Pioneer factors
weighed in favor of excusable neglect because the defendant
was not prejudiced by the late filing. Id. at 850.
We also observed that although the error was within
counsel's control, the miscommunication was attributable
solely to negligence. Id. Finally, there was no
indication that the delay was the result of bad faith,
i.e., an attempt to gain a tactical advantage
through the late filing. Id.
Connecticut State Dental Ass'n v. Anthem Health
Plans, Inc., 591 F.3d 1337, 1355-56 (11th Cir. 2009).
Bridges filed his Complaint on January 12, 2018. (Doc. 1). He
failed to serve CPC within the time allotted by Rule 4(m).
Cognizant of that fact and the opportunity to quickly dispose
of the case, CPC filed a motion to dismiss on April 20, 2018.
(Doc. 4). The time for briefing came and went with no
response from Mr. Bridges. Noting that the record reflected
“total ‘radio silence' from [Mr. Bridges,
]” the Court dismissed the case on May 21, 2018. (Doc.
6 at 4-5).
very next day, Mr. Bridges's counsel filed the present
Motion. (Doc. 8 at 2). In the Motion, Mr. Bridges's attorney,
Gina D. Coggin (hereinafter “Plaintiff counsel”),
sheds light on what happened. (See Id. at 1-4).
Plaintiff's counsel was apparently unaware that CPC was
never served until the Court dismissed the case. (See
Id. at 1-2). She was under the impression that CPC had
been served because her firm used an address that had
successfully served CPC only a few weeks prior. (See
Id. at ¶1); (see also Id. at 5) (affidavit
from Plaintiff counsel's legal assistant describing what
counsel also admits that she did not read her email informing
her of CPC's motion to dismiss. (See Id. at
¶3). She indicates that she was out of the office at the
time the email notification was sent. (See Id. at
¶3). Finally, Plaintiff's counsel informs the Court
that she experienced a family tragedy and “that several
emails were never opened for several days in April and May of
2018.” (See Id. at ¶4). At bottom,