United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 18, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-30611
____________
In Re: VANESSA FAITH PETTLE,
Debtor
______________________________________________________
VANESSA FAITH PETTLE,
Appellant
versus
GEORGE BICKHAM, JR,
Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARWOOD, GARZA and BENAVIDES Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Vanessa Faith Pettle (“Pettle”) appeals the district court’s decision to reverse the bankruptcy
court’s order refusing to grant George Bickham’s (“Bickham”) mo tion for relief from judgment.
Pettle argues that the bankruptcy court did not abuse its discretion in refusing to set aside its
judgment because Bickham had voluntarily requested that his claims be dismissed from the
bankruptcy proceedings.
I
Bickham filed suit in Louisiana state court for personal injuries he sustained in an automobile
accident with Pettle. Before the start of trial, Pettle filed a Chapter 7 bankruptcy petition. The
petition listed Bickham as an unsecured creditor owed an uncertain amount for “auto accident
damages.” The filing of the bankruptcy petition effected an automatic stay of the state court
proceedings. Bickham responded by filing a complaint asserting that the debt due to him was
nondischargeable under 11 U.S.C. § 523(a)(9). He also filed a motion for relief from the automatic
stay in order to allow the state court to assess the amount Pettle owed him. The bankruptcy court
granted the motion and lifted the stay. It also entered an order discharging all of Pettle’s debts except
those owed to Bickham.
On September 17, 2002, Bickham filed a “Motion to Dismiss Adversarial Proceeding.” The
bankruptcy court granted t he motion on September 22, 2002 by signing an order prepared by
Bickham which stated that the adversary proceeding was dismissed “with prejudice.” Subsequently,
Pettle’s counsel informed Bickham that his attempt to obtain relief in state court violated the
discharge injunction provision of 11 U.S.C. § 524. Less than two weeks before trial was scheduled
to commence, Pettle moved the bankruptcy court to reopen her Chapter 7 case and filed a “Motion
for Injunctive Relief and Temporary Restraining Order” to enjoin Bickham from pursuing the state
court proceeding. The court granted the motion and the trial was stayed.
On September 2, 2003, almost one year after Bickham had voluntarily moved to dismiss his
complaint, Bickham filed a “Motion for Relief From Order Under Federal Rule of Civil Procedure
60(b).” The bankruptcy court denied the motion, holding that Bickham’s error did not constitute
“mistake” or “excusable neglect” under Rule 60(b)(1). FED R. CIV. P 60(b)(1). The court also found
that this case did not present the type of “extraordinary circumstances” that could warrant relief under
Rule 60(b)(6). FED R. CIV. P 60(b)(6). On appeal, the district court reversed, finding that the
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bankruptcy court had abused its discretion by failing to consider the fact that Bickham had acted in
good faith and that the case had not been decided on its merits. The district court concluded that
Bickham’s actions constituted “excusable neglect” and thus warranted relief under Rule 60(b)(1).
II
We review the district court’s decision by applying the same standards of review it applied
to the bankruptcy court’s ruling. In re Pro-Snax Distributors, Inc., 157 F.3d 414, 419-20 (5th Cir.
1998). Thus, we review the denial of a Rule 60(b) motion for abuse of discretion. Provident Life
& Accident Ins. Co. v. Goel, 274 F.3d 984, 997 (5th Cir. 2001). Under this standard, “[i]t is not
enough that the granting of relief might have been permissible, or even warranted))denial must have
been so unwarranted as to constitute an abuse of discretion .” Elves, Inc. v. Eskenazi, 635 F.2d 396,
402 (5th Cir. 1981).
Rule 60(b)(1) of the Federal Rules of Civil Procedure, which is incorporated in Federal
Bankruptcy Rule 9024, allows a court to “relieve a party or a party’s legal representative from a final
judgment, order, or proceedings for . . . mistake, inadvertence, surprise, or excusable neglect.” FED
R. CIV. P 60(b)(1); FED. R. BANKR.P. 9024. Rule 60(b)(6) permits relief “for any other reason
justifying relief from the operation of the judgment.” FED R. CIV. P 60(b)(6). We have consistently
held that the “relief under Rule 60(b) is considered an extraordinary remedy . . . [and that] ‘[t]he
desire for a judicial process that is predictable mandates caution in reopening judgments.’” Carter v.
Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998) (quoting Bailey v. Ryan Stevdoring Co., Inc., 894 F.2d
157, 160 (5th Cir. 1990)).
III
Pettle argues that the district court erred by relying on the Supreme Court’s decision in
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Pioneer Investment Services Co. v. Brunswick Ass’n. Ltd. Partnership, 507 U.S. 380 (1993).
Bickham asserts that the district court’s reliance on Pioneer was correct and that his good faith
efforts warranted reversing the bankruptcy court’s decision. Specifically, he notes that his neglectful
actions were excusable because his claims were never decided on the merits, and because he suffered
substantial prejudice while Pettle did not. He also argues that substantial justice warranted reversal
so that he as “a permanently injured victim [may] have his day in court against an alleged intoxicated
driver.”
In Pioneer, the Court considered the meaning of “excusable neglect” within the context of
Bankruptcy Rule 9006(b)(1), which “empowers a bankruptcy court to permit a late filing if the
movant’s failure to comply with an earlier deadline ‘was the result of excusable neglect.’” Id. at 382
(quoting FED. R. BANKR.P. 9006(b)(1)). The Court held that the bankruptcy court should have
weighed a number of factors in determining excusable neglect including (1) the danger of prejudice
to the debtor, (2) the length of 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. at 395.
In this case, however, Bickham’s negligence did not just involve a missed filing deadline.
Rather, his predicament stems from his voluntary motion to dismiss with prejudice his own adversarial
action. While Pioneer guides an analysis of “excusable neglect” within the context of Bankruptcy
Rule 9006(b)(1), nothing in the Supreme Court’s opinion changes the well-established rule that
“‘inadvertent mistake’[,] . . . [g]ross carelessness, ignorance of the rules, or ignorance of the law are
insufficient bases for 60(b)(1) relief . . . . In fact, a court would abuse it s discretion if it were to
reopen a case under Rule 60(b)(1) when the reason asserted as justifying relief is one attributable
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solely to counsel’s carelessness with or misapprehension of the law or the applicable rules of court.”
Edward H. Bohlin Co. v. Banning, 6 F.3d 350, 356-57 (5th Cir. 1993). Similarly, “[t]he broad power
granted by [Rule 60(b)](6) is not for the purpose of relieving a party from free, calculated, and
deliberate choices he has made.” Id; see also McCurry v. Adventist Health Sys./Sunbelt, 298 F.3d
586, 592 (6th Cir. 2002) (“neither strategic miscalculation nor counsel’s misinterpretation of the law
warrants relief from judgment.”); 46 AM.JUR.2D Judgments § 823 (2004) (“As a general rule, parties
seeking relief from judgment on the basis of surprise, mistake, inadvertence, or excusable neglect
under the Federal Rules are denied relief from the result of voluntary actions on their part.”); 11 C.
WRIGHT, A. MILLER, & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2858 (2d ed. 1995)
(“Voluntary action also may estop a party from seeking relief on the ground of mistake or excusable
neglect . . . . This includes matters such as . . . voluntary dismissals, even when based on erroneous
facts.”).
Accordingly, federal courts have consistently applied this principle in refusing to grant a party
who voluntarily requests dismissal of a claim to obtain relief from that judgment under Rule 60(b).
For example, in Nemaizer v. Baker, the Second Circuit addressed a similar case in which the plaintiff
filed a stipulation dismissing his action with prejudice. 793 F.2d 58 (2d Cir. 1986). When the
plaintiff discovered that the stipulation would preclude him bringing his action in state court, he
sought relief from the judgment. While the district court granted the plaintiff’s motion, the court of
appeals reversed noting that “an attorney’s failure to evaluate carefully the legal consequences of a
chosen course of action provides no basis for relief from a judgment” under Rule 60(b)(1) or
60(b)(6). Id. at 62. See also Shackleton v. Food Mach. & Chem. Corp., 248 F.2d 854 (7th Cir.
1957) (district court did not abuse its discretion when it refused to vacate its order granting plaintiff’s
5
motion to voluntarily dismiss defendant from suit); In re Mercado-Jimenez, 193 B.R. 112 (D.P.R.
1996) (bankruptcy court did not abuse its discretion in denying debtor’s motion to withdraw its
earlier motion for voluntary dismissal which the bankruptcy court had already granted); DeLong’s,
Inc. v. Stupp Bros. Bridge & Iron Co., 40 F.R.D. 127 (E.D. Mo. 1965) (denying plaintiff’s Rule
60(b)(6) motion to reinstate two defendants it voluntarily dismissed in order to obtain an earlier trial
date).
Similarly, Bickham made a specific choice to voluntarily request dismissal of his case with
prejudice without fully understanding the consequences of his decision on his state court action.
“Where a party makes a considerable choice . . . he ‘cannot be relieved of such a choice [under Rule
60(b)] because hindsight seems to indicate to him’ that, as it turns out his decision was ‘probably
wrong.’” Paul Revere Variable Annuity Ins. Co. v. Zang, 248 F.3d 1, 6 (1st Cir. 2001) (quoting
Ackermann v. United States, 340 U.S. 193, 198 (1950)). This principle is no less applicable in
situations where the merits have not been adjudicated. Indeed, in all of the cited cases where the
plaintiff sought relief after voluntarily requesting dismissal, no determination on the actual merits had
been made.
Moreover, it is particularly significant that by the time Bickham filed his Rule 60(b) motion
the time to appeal the September 22, 2002 order dismissing his adversary complaint had long since
expired. See Pryor v. U.S. Postal Service, 769 F.2d 281, 288 (5th Cir. 1985). We see no reason to
find that the bankruptcy court’s denial of relief under Rule 60(b) was so unwarranted as to constitute
an abuse of discretion.
IV
Accordingly, we REVERSE the district court’s ruling and AFFIRM the bankruptcy court’s
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decision. We REMAND this case for further proceedings, consistent with this opinion, as the
bankruptcy court deems necessary.
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