We must first address whether the order setting aside a judgment and reinstating the case pursuant to Fed.R.Civ.P. 60(b)(6), is an appealable order. 28 U.S.C. section 1291 provides that courts of appeal have jurisdiction to review "all final decisions of the district courts of the United States." Subsequent provisions of this chapter detail the bases for interlocutory appeals, none of which provide jurisdiction in this case. The present situation also does not present a "collateral order" for review. See Cohen v. Beneficial Life Ins. Co., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).

This appeal is clearly not from a final order of the district court. It is apparent that this is merely one of the orders which the district court has made and will make in the process of reaching a decision. There is, however, a reasonably well grounded common-law exception to the final-judgment rule where the district court acts without the power to do so. Phillips v. Negley, 117 U.S. 665, 671-72, 6 S. Ct. 901, 903-04, 29 L. Ed. 1013 (1885); Stradley v. Cortez, 518 F.2d 488, 492 (3d Cir.1975); Hand v. United States, 441 F.2d 529, 530 n. 1 (5th Cir.1971); Rinieri v. News Syndicate Co., 385 F.2d 818, 821-22 (2d Cir.1967).

The argument that the district court acted without power is as follows. Rule 60(b)(1) authorizes the trial court to grant relief for "mistake, inadvertence, surprise, or excusable neglect," but limits the exercise of that power to one year. Rule 60(b)(6) permits the court to grant relief from a judgment for "any other reason justifying relief from the operation of the judgment." There is no time limit on the exercise of the court's power under Rule 60(b)(6), except that the motion for relief from the judgment must be made "within a reasonable time."

This court has held that 60(b)(6) is to be used "only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule." Hopper v. Euclid Manor Nursing Home, 867 F.2d 291, 294 (6th Cir.1989). Rule 60(b)(6) specifically states that the grounds under 60(b)(6) are "other" reasons justifying relief. This can mean nothing less than reasons not stated in 60(b)(1) and the other exceptions. A second reason why the plain language of the statute indicates that the exceptions must be mutually exclusive is that the time limitation placed upon the four discrete grounds stated in Rule 60(b)(1) would otherwise be rendered nugatory by action of 60(b)(6), which is without time limit.

Defendant's contention is that the instant situation falls within 60(b)(1), thus excluding power to act under 60(b)(6), and that plaintiff's motion should have been denied for failure to apply within one year of the dismissal. This argument involves the very merits of this appeal. If the district court acted correctly, the exception to the final judgment rule does not apply and this court is without jurisdiction to hear this appeal. Thus, to decide the jurisdictional issue, it is necessary to decide the appeal on its merits.

Defendant argues that the basis for plaintiff's motion is conduct encompassed in Rule 60(b)(1). Rule 60(b)(1) provides four discrete grounds: mistake, inadvertence, surprise, and excusable neglect. Therefore, the next step in our analysis must be to examine the facts of this case to determine if the grounds stated and relied upon by the district court fall within Rule 60(b)(1). We believe that they do not.

First, no mistake was made. The district court did exactly what it thought right when it dismissed the action. No one was present at the docket call, and the action was dismissed. Second, the record shows that contrary to any claim of inadvertence, the dismissal of the claim was the considered action of the district court. Third, there should be no surprise when the case is dismissed if the parties do not show up at docket calls or perform as directed by the court. The dismissal of actions under these circumstances is a sanction commonly used by judges, and the threat of dismissal an appropriate tool to use in the management of litigation.

Finally, there is no question that the neglect of counsel was a prime factor resulting in the dismissal. The question is whether it was "excusable" neglect. The trial court did not so find. The lawyer responsible had no real excuses when confronted by the plaintiff. His response was "sue me." We can find nothing in the record to suggest that the neglect of plaintiff's former lawyer could be characterized as "excusable" neglect. Since there was nothing in this case that would indicate "excusable" neglect, Rule 60(b)(1) does not cover this case.

Defendant argues that the district court's holding implies that plaintiff's neglect was excusable, therefore the application for relief should have been held untimely filed.1 This argument assumes that it is the neglect of the movant which is necessarily scrutinized for purposes of Rule 60(b)(1). The advisory committee's note to the 1946 amendments to Rule 60, which, inter alia, removed the word "his" from 60(b)(1), makes clear that this assumption is incorrect:

The qualifying pronoun "his" has been eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as where the judgment is taken against the party through his mistake, inadvertence, etc.

(Emphasis in original.) The provisions of Rule 60(b)(6) permit a court to act as the district court did here. Rule 60(b)(6) is broadly drafted to give the trial judge discretion, without reference to the one-year limitation imposed elsewhere, to grant relief from judgment in unusual situations. It provides that the court may set aside a judgment "for any other reason justifying relief from the operation of the judgment."

The district judge found as a reason "the interest of justice," after considering the broad equities of the case. The facts show that the suit was some distance from where the plaintiff lives, that the plaintiff repeatedly attempted to find out about his case, and that there is no showing of undue prejudice to the defendant. Clearly, the trial court did not err in exercising its power under the provisions of Rule 60(b)(6).

We conclude upon examination of the merits of this appeal that no exception to the final judgment rule applies, because the district court acted within its discretion. The trial judge properly granted relief from the judgment in order to avoid penalizing plaintiff, who displayed reasonable diligence in attempting to discover the status of his case, for the inexcusable misconduct of his attorney. The order reinstating this case is therefore not an order or judgment from which an appeal may be taken.

DISMISSED.