DENISE COTE, District Judge.
On July 20, 2018, plaintiff Connie Bertram
This proceeding arises out of a litigation pending in the United States District Court for the District of Columbia between plaintiff Connie Bertram and defendant Proskauer Rose LLP ("Proskauer").
After briefing and argument, this Court granted the motion to quash. The Court found not only that the mediation agreement signed by the parties supported quashing that subpoenas, but also that "strong public policy reasons" necessitated that result. Those rulings were memorialized in a July 28, 2017 Order.
Both sides appealed. On April 26, 2018, the Second Circuit remanded this case pursuant to
A May 24 Order required JAMS and Wittenberg to supply copies of Wittenberg's notes for
A June 8 Order required both parties by June 18 to simultaneously brief the question of whether, if the
A June 29 Order dismissed this case as moot. The Order determined that the Wittenberg's notes do not reference or memorialize any alleged threat made by Proskauer to terminate Bertram. It also took note of the suggestion at oral argument before the Second Circuit that the subpoenas had effectively become limited to any notes or other documents that referenced or memorialized any threats. Accordingly, because JAMS and Wittenberg had responded to the subpoena as so-limited, the case was required to be dismissed as moot.
On July 11, 2018, Bertram filed a letter on this Court's ECF Docket seeking permission to file a redacted version of a proposed motion for relief under Rule 60(b), Fed. R. Civ. P. This Court approved the proposed redactions on July 12, 2018. It was not until July 20, however, that Bertram filed the motion, after making so-called "very minor edits" to the public portion of the motion.
According to Bertram, due to a "clerical mistake" by this district's "Clerk's office . . . Plaintiff's counsel is not currently entered into the case" and her counsel "never received the Court's June 8 order. Nor did Plaintiff's counsel receive the Court's June 29 Order dismissing this case as moot. In fact, Plaintiff's counsel only learned of the dismissal, and the prior order, inadvertently on July 5, 2018." In a footnote, however, which appears to be the "very minor" edit, Bertram's counsel admits that they had received JAMS's and Wittenberg's June 15 brief directly from their counsel.
The "clerical mistake" is described by Bertram as follows: Despite filing a notice of appearance on June 30, 2017, Bertram's counsel claims to have been "removed" from ECF's notification system by the Clerk's Office due to a "clerical mistake." As a result, Bertram's counsel did not receive electronic notices of recent docket events, despite having received such notices earlier in this case. This district's ECF system records tell a different tale. They show that Bertram's counsel never received e-mailed notices of electronic filing at any point during this case, and was not recently "removed" from receiving them.
Rule 60(b)(1), Fed. R. Civ. P., provides that a "court may relieve a party . . . from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise or excusable neglect." Bertram contends that the judgment should be vacated because of her counsel's "excusable neglect." The Supreme Court has held that such motions are to be considered in light of four factors: "`[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.'"
This case is a typical case: the first, second, and fourth factors generally favor Bertram. The third factor, however, does not. This Court's ECF Rule 9.1 states that "[i]t remains the duty of Filing and Receiving Users to . . . regularly review the docket sheet of the case." ECF Instruction 13.14 further provides that: "[E]-mail is not infallible. It remains the duty of Filing and Receiving Users to regularly review the docket sheet of the case in order not to miss a filing." And, whenever an attorney logs in to this Court's ECF system, emblazoned on the home page of that system is the text "
In this case, by Bertram's counsel's own admission, they failed to check the docket of this case for at least a four-week period, from June 8, 2018 to July 5, 2018, which was the period immediately following this Court's receipt of the approximately 15 pages of notes for
Two other factors bear on the disposition of this motion. First, Bertram's counsel claims that "Plaintiff took action to vacate the judgment within days of learning that she never received notice of the Court's orders." It appears that from July 5 to July 11, Bertram was likely preparing the motion. But there has been no explanation provided for the delay from July 12, when the redactions were approved, to July 20, when the motion was actually filed.
Second, Bertram has not identified any prejudice from her lack of an opportunity to submit a brief prior to the June 29 Order disposing of the motion. She has not provided even a preview of the argument she would have made, or in any way explained how this Court's June 29 Order was incorrect.
It is always an unfortunate result when the errors of counsel must be visited on their client. But, when counsel does not even attempt to describe the arguments that might be made if the error were excused, there is no reason to hesitate in applying the
Bertram's July 20, 2018 motion for relief from the June 29, 2018 Order pursuant to Rule 60(b)(1), Fed. R. Civ. P. is denied.
SO ORDERED.