IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LOUIS LAWSON, Plaintiff,

v. MARK LYMER, ) Defendant. ) DEFENDANT'S MEMORANDUM IN OPPOSITION TO MOTION TO VACATE DISMISSAL* INTRODUCTION Plaintiff Lewis Lawson brought this personal injury action against Defendant Mark Lymer. This Court dismissed Lawsons action after Lawsons attorney, John Pierce, failed to respond to discovery requests and to attend a status conference. This Court later vacated the dismissal. Once again, this Court dismissed Lawson's case because his counsel failed to attend a scheduled status conference. Lawson moved to vacate the order of dismissal under Rule 60(b) (1), Fed. R. Civ. P., on the grounds of excusable neglect. Lymer respectfully requests this Court to deny Lawsons motion because his counsel's failure to attend the scheduled status conference does not fall within the parameters of excusable neglect. ) ) ) ) ) ) )

CIVIL ACTION NO. 98-15-CIV-5-AR

This motion memo was adapted from an anonymous sample written by a previous Duke Law School student. It is intended to be used as an example of a multi-issue trial-level brief. Although based on federal law, several liberties have been taken for pedagogical purposes and this memorandum should not be relied upon as an accurate representation of current law.

FACTS The parties are now before the Court because Lawson's counsel, John Pierce, failed to appear at a scheduled status conference, resulting in the dismissal of Lawson's case. (Pierce Aff. 9.) Mark Lymer is the Defendant in this personal injury action brought by Louis Lawson, Plaintiff, for damages related to injuries sustained in an automobile accident. (Id. 2.) The missed status conference came after several other missed deadlines in the litigation. During the earlier discovery phase of this case, Lymer had served Lawson with discovery requests, to which Lawson failed to respond within the time allotted. (Disc. Order, May 15, 1998.) After attempting to resolve the matter through consultation with Pierce, Lymer subsequently filed a motion to compel discovery. (Id.) Nearly one month after filing the motion, Lawson still had not responded to the discovery requests. (Id.) The Court then ordered Lawson to respond to these outstanding discovery requests by a specified deadline (id.), which Lawson also failed to meet (Disc. Order, July 6, 1998). Lymers counsel made numerous efforts to contact Pierce by telephone and letter, attempting to procure responses to the discovery requests. (Id.) The Court found that Pierces proffered reason for failing to comply with the Court's order did not justify his noncompliance, and ordered Lawson to respond to outstanding discovery requests by a second deadline or be held in contempt. (Id.) Lawson also was ordered to pay Lymers attorney's fees in the amount of $450. (Id.) Pierce had also failed to appear at a status conference scheduled for October 14, 1998, resulting in the dismissal of Lawsons case. (Pierce Aff. 3.) The Court later granted Lawsons motion to vacate the dismissal and rescheduled the status conference for November 27, 1998. (Id. 4.)

Finally, Pierce failed to attend a status conference scheduled by the Court for November 27, 1998. (Id. 9.) The Court had scheduled the November status conference at a hearing earlier in the month, and Pierce had given the date to his secretary. (Id. 4.) The secretary failed to enter the status conference date into the computer tickler system according to firm procedure (id. 5, 7-8), but she did correctly note the date of the conference in Pierces docket book (Seaver Aff. 3). Later, Pierce made plans to leave town on November 25, 1998 for four days. (Pierce Aff. 8.) After Pierce failed to appear at the November status conference, the Court dismissed the case and Pierce filed the current motion to vacate the dismissal and reinstate the case. ARGUMENT LAWSONS MOTION TO VACATE DISMISSAL SHOULD BE DENIED BECAUSE PIERCES FAILURE TO ATTEND A SCHEDULED STATUS CONFERENCE DOES NOT CONSTITUTE EXCUSABLE NEGLECT. Lawsons motion to vacate the order of dismissal should be denied because Pierces failure to respond to discovery and attend status conferences is not excusable neglect. A court may relieve a party from an order or judgment, including for mistake, inadvertence, surprise, or excusable neglect. Fed. R. Civ. P. 60(b). Not every type of neglect is excusable. Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 359 (7th Cir. 1997). Run-of-the-mill inattentiveness by counsel is inexcusable. Skinner v. First Union Nat'l Bank (In re Skinner), No. CIV.A.98-0010-H, 1998 WL 175909, at *3 (W.D. Va. Apr. 7, 1998) (quoting Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir. 1996)). To determine whether neglect is excusable, the trial court must weigh the equities, "taking account of all relevant circumstances surrounding the party's omission." Pioneer Inv. Servs. Co. v Brunswick Assocs. Ltd. Pship, 507 U.S. 380, 395 (1993). As defined by Pioneer, these circumstances comprise at least four factors: (1) the danger of prejudice to the opposing

party; (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. Id. In addition, a trial judge has the discretion to consider the attorney's "overall record of compliance with court deadlines" when weighing the equities. Robb, 122 F.3d at 362. Finally, although ultimate responsibility for complying with court deadlines rests on an attorney, clients "must be held accountable for the acts an omissions of their attorneys." Pioneer, 507 U.S. at 396. Here, Pierce's failure to attend a status conference did not constitute excusable neglect under the Pioneer factors: first, Pierces reasons for failing to attend the scheduled conference are not excusable neglect; second, his history of noncompliance with court deadlines weighs against a finding of excusable neglect; and third, the delay caused by Pierces failure to attend the scheduled status conference is not unreasonably burdensome or appreciably prejudicial to Lymer. Accordingly, Lawsons motion should be denied. A. Pierces reasons for failing to attend the scheduled status conference weigh against a finding of excusable neglect.

Pierces reasons for failing to attend the scheduled status conference do not amount to excusable neglect. Counsels reason for failing to attend a status conference is the most important of the Pioneer factors for determining whether neglect is excusable. Skinner, 1998 WL 175909, at *3 n.3. An attorney is not excused for neglect that looks like run of the mill inattentiveness. Id. at *3. In Skinner, an attorneys neglect was inexcusable when he instructed his secretary to mail a brief to the courthouse one day before it was due, and the secretary failed to do so. Id.; see also Robb, 122 F.3d at 360 (finding that "inattentiveness to the litigation is not excusable" and "missing a . . . deadline because of slumber is fatal") (quoting In re Plunkett, 82 F.3d 738, 742 (7th Cir. 1996)). By contrast, an attorney who had negotiated an extension of a deadline with opposing

counsel but neglected to inform the court of the agreement was not inattentive to the litigation. Robb, 122 F.3d at 360. Here, Pierces reasons for failing to attend the November 27 status conference show run-ofthe-mill inattentiveness. Pierces reasons for failing to attend the status conference are that (1) his secretary failed to enter the conference date in the firm's tickler system and (2) he did not consult his docket book, in which the status conference date had been correctly entered, before making travel plans. (Pierce Aff. 7-8.) Pierces behavior is similar to that of the attorney in Skinner, who relied on his secretary to mail a brief but whose inattention to the litigation would have resulted in a missed deadline even had the secretary mailed the brief as instructed. 1998 WL 175909, at *3. Unlike the attorney in Robb, Pierce had not informed opposing counsel of his reasons for missing the meeting or arranged for an alternative date, and thus Pierce appears to have been slumber[ing] on the job. 122 F.3d at 360. Pierces inattentiveness to his docket book and his secretary's failures are mere run-ofthe-mill inattentiveness and weigh against a finding of excusable neglect. B. Pierces history of noncompliance with court deadlines weighs further against a finding of excusable neglect.

Pierces history of noncompliance with court deadlines weighs further against a finding of excusable neglect, as an attorneys history of noncompliance with court deadlines suggests inexcusable neglect. Robb, 122 F.3d at 362. Certain behaviors, such as an attorney's repeated failure to comply with court deadlines, "flouting the rules" of a court, or conduct that can be "characterized as egregious," exceed the parameters of excusable neglect. Id. at 360. In Skinner, an attorneys record of past difficulty meeting various deadlines and attending certain hearings weighed against a finding of excusable neglect. 1998 WL 175909, at *3.

Alternatively, a conscientious practitioner can rely on his record of following rules and meeting deadlines to weigh in his favor. See Robb, 122 F.3d at 362 (noting that the trial judge could properly consider the attorneys reputation as among the bars most conscientious in following . . . rules and meeting deadlines). Here, Pierce flouted the rules of the court and repeatedly failed to comply with court deadlines, and thus his behavior cannot be called excusable neglect. Pierces failure to attend the November 27 status conference was his second such episode in a short period of time; he missed the first scheduled status conference only six weeks earlier, on October 14. (Pierce Aff. 3, 9.) Not only did Pierce fail to attend two consecutive status conferences, but he also failed to comply with Lymers discovery requests within the allotted time, resulting in a court order to respond by a specific deadline, which Pierce also flouted. (Disc. Order, May 15, 1998.) Despite the courtimposed deadline and numerous telephone calls and letters from Lymers counsel, Pierce had still not complied with the discovery request over one month later. (Disc. Order, July 6, 1998.) As a result, Lawson was sanctioned and the Court imposed a second order to comply with discovery requests under penalty of contempt. (Id.) Pierces track record is distinguishable from the conscientious behavior of the attorney in Robb, 122 F.3d at 362, and more similar to that of the attorney in Skinner, 1998 WL 175909, at *3 n.4, who had previously been sanctioned for missing deadlines and failing to appear for meetings. Pierces four deadline violations during one year of litigation forcefully depict his practice of flouting court rules and disregarding court deadlines. Such a history of noncompliance weighs against a finding of excusable neglect.

C. The equities weigh against a finding of excusable neglect.

The equities weigh against finding excusable neglect even though the delay caused by Pierces failure to attend the scheduled status conference is not unreasonably burdensome or appreciably prejudicial to Lymer. The Pioneer factors weigh against a finding of excusable neglect even when an attorney's neglect results in minimal delay and no appreciable prejudice to the opposing party. Skinner, 1998 WL 175909, at *3. The first and second Pioneer factors length of delay and prejudice to the defendantare not dispositive either way." Id. In Skinner, the responsibility for failure to comply with a court deadline lay entirely with counsel and his secretarial staff. Id. Further, the length of the delay (two weeks) was not unreasonably burdensome and there was no appreciable prejudice to the opposing party. Id. Nor did Skinner make a finding that the attorney had acted in bad faith. Id. Nevertheless, the neglect was not excusable because of the attorney's reasons for noncompliance and the attorney's record of past difficulty meeting various deadlines and attending certain [meetings]." Id. Here, Pierces neglect is not excusable for the same reasons as were articulated in Skinner, 1998 WL 175909, at *3. As in Skinner, id., the delay caused by Pierces failure to attend a status conference is probably not unreasonably burdensome or appreciably prejudicial to the Defendant in this case, and the responsibility for failure to attend the status conference lies entirely with Pierce and his secretarial staff (Pierce Aff. 4-9). Nor does Defendant assert that Pierces dilatory behavior rise to the level of bad faith. Nevertheless, and also similar to Skinner, 1998 WL 175909, at *3, Pierce has a record of flouting various deadlines and skipping certain meetings (Disc. Order, July 6, 1998; Disc. Order, May 15, 1998; Pierce Aff. 9). Pierces only proffered excuse is his own inattentiveness and his secretarys mistake. (Pierce Aff. 7-8.) On balance, this type of neglect is not excusable because of

Pierces reasons for noncompliance and his "record of past difficulty meeting various deadlines and attending certain [meetings]." Skinner, 1998 WL 175909, at *3. Thus, even though the delay caused by Pierces failure to attend the scheduled status conference is not unreasonably burdensome or appreciably prejudicial, the equities still weigh against finding excusable neglect. CONCLUSION Weighing all of the equitable factors stated above, Plaintiff's counsel's failure to attend the status conference does not fall within the parameters of excusable neglect. Thus, Plaintiff's motion should be denied. Respectfully submitted, ___________________ Attorney for Defendant