Filed: Feb. 22, 2012
Latest Update: Feb. 22, 2012
Summary: ORDER PHILIP A. BRIMMER, District Judge. This matter is before the Court on plaintiff's motion for reconsideration [Docket No. 182]. Plaintiff requests reconsideration of the Court's September 10, 2010 Order for Entry of Partial Judgment [Docket No. 163]. In the September 10 Order, the Court found that plaintiff had demonstrated entitlement to judgment against defendant Brian McCarthy on three of his claims, but had failed to present evidence of actual damages arising from those claims. Theref
Summary: ORDER PHILIP A. BRIMMER, District Judge. This matter is before the Court on plaintiff's motion for reconsideration [Docket No. 182]. Plaintiff requests reconsideration of the Court's September 10, 2010 Order for Entry of Partial Judgment [Docket No. 163]. In the September 10 Order, the Court found that plaintiff had demonstrated entitlement to judgment against defendant Brian McCarthy on three of his claims, but had failed to present evidence of actual damages arising from those claims. Therefo..
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ORDER
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on plaintiff's motion for reconsideration [Docket No. 182]. Plaintiff requests reconsideration of the Court's September 10, 2010 Order for Entry of Partial Judgment [Docket No. 163]. In the September 10 Order, the Court found that plaintiff had demonstrated entitlement to judgment against defendant Brian McCarthy on three of his claims, but had failed to present evidence of actual damages arising from those claims. Therefore, the Court awarded plaintiff nominal damages on those claims.1 On September 14, 2010, partial judgment entered [Docket No. 164] pursuant to the September 10 Order. On September 21, 2010, final judgment entered [Docket No. 168] pursuant to the September 14 partial judgment and an earlier-entered partial judgment [Docket No. 158]. Therefore, the present motion, which seeks relief from the judgment in this case to the extent it awarded only nominal damages against defendant McCarthy, implicates Federal Rule of Civil Procedure 60(b).2
Relief under Rule 60(b) is "extraordinary and may only be granted in exceptional circumstances." Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (quoting Cashner v. Freedom Stores, 98 F.3d 572, 576 (10th Cir. 1996)). Without citing Rule 60(b) or any other authority, plaintiff requests that the Court revisit the award of nominal damages in light of the failure by plaintiff's previous counsel to respond to a Court order providing plaintiff with the opportunity to propose a course of action for dealing with the claims against defendant McCarthy. In a civil case, however, ineffectiveness of counsel is not grounds for revisiting a judgment.3 See Hudelson v. Cowdry, 3 F. App'x 845, 847 (10th Cir. 2001) (noting that there is no constitutional right to effective assistance of counsel in civil cases and that plaintiff's "remedy for any alleged incompetence by his counsel is through a malpractice action against counsel, not through any relief from the judgment in this case"); see also Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003) ("Counsel's performance, however deficient, would not . . . form the basis for reversal of the trial court."); Siner v. Eastside Community Investments, Inc., 22 F. App'x 642, 643 (7th Cir. 2001) (stating that "ineffective assistance of counsel does not fall under the rubric of Rule 60(b)") (citing Bell v. Eastman Kodak Co., 214 F.3d 798, 801-02 (7th Cir. 2000); Sparrow v. Heller, 116 F.3d 204, 206 (7th Cir. 1997)).4 "Thus, to the extent that the failure to respond . . . is attributable to plaintiff's counsel, plaintiff must bear those consequences." York v. Federal Bureau of Prisons, No. 07-cv-01297-PAB-KLM, 2009 WL 1537968, at *4 (D. Colo. May 29, 2009).
For the foregoing reasons, it is
ORDERED that plaintiff's motion for reconsideration [Docket No. 182] is DENIED.
