[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12303 October 2, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00040-CV-CDL-3
TAKAIYOUS ALLEN,
Plaintiff-Appellant,
versus
THOMAS DOCKERY, JR.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 2, 2008)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Takaiyous Allen appeals the district court’s denial of his
motion for reconsideration of the order dismissing his civil rights action. After
review, we affirm.
I. BACKGROUND
A. Allen’s Lawsuit
Plaintiff-appellant Allen filed this action against Defendant-appellee
Thomas Dockery, an Athens police officer, alleging claims under 42 U.S.C.
§ 1983 and state law. At all times in the district court and on appeal, Plaintiff
Allen has been represented by his counsel Jim Smith. A scheduling order set
discovery to expire on December 31, 2007.1 On November 26, 2007, Defendant
Dockery served Allen with interrogatories and requests for production of
documents by hand delivering them to attorney Jim Smith’s office. Allen’s
responses were due December 26, 2007.
On January 2, 2008, after receiving no discovery responses, Defendant
Dockery’s counsel wrote a letter to Plaintiff Allen’s counsel Jim Smith in
compliance with the local rule requiring counsel to confer with opposing counsel
to see if a discovery dispute can be resolved without court intervention (“good
1
Upon Dockery’s unopposed motion, the discovery deadline was later extended to
February 29, 2008.
2
faith letter”). In the letter, Defendant Dockery’s counsel asked Allen’s counsel to
get in touch with him by January 7, 2008.
When Dockery’s counsel did not hear from Allen’s counsel, on January 11,
2008, he filed a motion for the imposition of sanctions. Allen’s counsel did not
file a response to the motion for sanctions. On February 14, 2008, the district
court granted the motion in a text-only order entered on the docket and
electronically transmitted to all counsel. The district court found that Plaintiff
Allen had failed to respond with Defendant Dockery’s discovery requests “without
justification” and ordered Allen to pay Dockery $1,000 for costs and expenses and
to provide full and complete responses, without objection, by February 22, 2008.
The district court warned Allen and his counsel that a failure to comply would
result in the dismissal of Allen’s complaint. The district court directed Defendant
Dockery to inform the court whether Allen complied with the court’s order.
On February 22, 2008, Allen’s discovery responses were hand delivered to
Dockery’s counsel, but Allen’s counsel failed to have the interrogatories verified
by Allen or to include a certificate of service for the response to the document
requests. Allen also did not pay Dockery the court-ordered $1,000. On the same
day, Allen’s counsel filed a motion to set aside the sanctions order in which he
argued he had responded to Dockery’s discovery requests, but admitted he had not
3
paid the $1,000 because he was incarcerated. Allen’s counsel asked that the
$1,000 “be converted to a judgment without a timeline.” Allen’s counsel did not
address his failure to have the discovery responses verified or to provide a
certificate of service. On February 25, 2008, Dockery advised the district court of
Allen’s partial compliance with the sanctions order.
On February 26, 2008, the district court denied Plaintiff Allen’s motion to
set aside the sanctions order and dismissed Allen’s complaint with prejudice. The
court found that Allen had asserted “no legitimate basis” for setting aside the order
and had “failed to comply with the Court’s previous order by failing to respond
fully to Defendant’s discovery requests and by failing to pay the court ordered
costs incurred by Defendant in having to bring a motion to compel.” A final
judgment also was entered on February 26, 2008 dismissing Allen’s complaint
with prejudice.
B. Post-judgment Motions
On March 7, 2008, Allen’s counsel filed a motion for reconsideration
pursuant to Federal Rule of Civil Procedure 60(b)(3),2 along with a 26-page brief.3
2
Rule 60(b)(3) permits a district court to relieve a party from a judgment for “fraud[,]. . .
misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3).
3
In the motion and brief, Allen contended, inter alia, that Dockery had misrepresented to
the district court that Allen had not responded to the discovery requests because Allen had
“substantially complied” with the district court’s order to respond.
4
The district court clerk terminated the March 7 motion for exceeding the page
limits set by local rule,4 using an incorrect event name when e-filing and failing to
include a certificate of service. The clerk instructed Allen to re-file the motion.
On March 10, 2008, Allen’s counsel re-filed the Rule 60(b)(3) motion,
along with a 19-page brief. The district court clerk terminated the March 10
motion for exceeding the page limit and again instructed Allen to re-file the
motion.
On March 18, 2008, Allen’s counsel filed a third motion for relief from the
judgment, this time based on Rule 60(b)(1) and (6). The accompanying five-page
brief acknowledged that Allen’s interrogatory responses were not verified, which
amounted to a defective response. Allen’s counsel argued, however, that Allen
had substantially complied in responding to Dockery’s discovery requests and that
the failure to include a verification or a certificate of service was not made in bad
faith and constituted “excusable neglect.” The basis for counsel’s excusable
neglect claim was “a breakdown in communication and organization which has
been remedied and will not be repeated.”5 Allen’s counsel asked for the court’s
4
Local Rule 7.6 of the Middle District of Georgia limits motions for reconsideration to
five pages.
5
Also on March 18, Allen filed certificates of service indicating that he had served
Dockery with amended responses to Dockery’s document requests and interrogatories. These
certificates of service were filed as separate pleadings on March 18, which was after the February
5
“mercy” and stated that in future there would be “meticulous adherence to the
rules of procedure” and “no further delays.” Allen’s counsel attached to the Rule
60(b) motion: (1) copies of Allen’s discovery responses; and (2) his February 22,
2008 letter to Dockery’s counsel advising, inter alia, that the discovery responses
would be delivered that day and that he was waiting for a signed verification from
Allen, who was incarcerated, and would supplement the responses with the
verification when it was received.
In an April 4, 2008 order, the district court denied Allen’s Rule 60(b)
motion. The district court concluded that “no extraordinary circumstances exist in
this case” and that Allen’s failure to fully comply with the court’s sanction order
“was not due to mistake, inadvertence, surprise, or excusable neglect, and no other
justifiable reason exists for relief.” The district court found that the “drastic
remedy” of dismissal was warranted because “Plaintiff’s counsel’s conduct
demonstrates a pattern of disregard for the rules of this Court and this Court’s
authority to enforce compliance with those rules.” The district court recounted
Allen’s counsel’s history of failing to comply with court rules and orders, as
follows:
14, 2008 order compelling complete discovery responses and the February 26, 2008 dismissal.
Thus, at the time of the dismissal, there was still no verification or certificate of service as to the
discovery responses.
6
Plaintiff failed to respond to discovery requests served on November 26,
2007. He then failed to respond to Defendant’s counsel’s letter, which
was delivered by Defendant’s counsel pursuant to the Court’s rules that
require parties to try to work out their discovery differences before
burdening the Court with unnecessary motions for sanctions. Plaintiff’s
counsel then arrogantly ignored Defendant’s motion for sanctions.
Finally, after the Court granted that motion, Plaintiff failed to comply
with the Court’s order which required Plaintiff to respond fully to the
discovery and pay Defendant $1,000 for his cost and expense in having
to file the motion for sanctions. Now desperate to avoid a final
judgment, Plaintiff’s counsel offers nothing more than pleas for mercy
with a promise that he will follow the Court’s rules in future.
While the district court “sympathize[d] with the Plaintiff’s plight,” it stated that
Allen “bears ultimate responsibility for his choice of counsel.”
Allen filed his notice of appeal on April 29, 3008. This Court dismissed as
untimely Allen’s appeal to the extent it sought review of the district court’s
February 26, 2008 order dismissing his complaint, but permitted his appeal to
proceed as to the April 4, 2008 order denying his Rule 60(b) motion for
reconsideration. Therefore, we address only the district court’s ruling on the Rule
60(b) motion.
II. DISCUSSION
Allen’s motion sought relief from the judgment under subsections (1) and
(6) of Rule 60(b). Rule 60(b) provides that a district court may “[o]n motion and
just terms . . . relieve a party or its legal representative from a final judgment,
7
order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable
neglect . . . [or] (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1),
(6).6
Relief under Rule 60(b)(6) is available only “upon a showing of exceptional
circumstances.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.
1993). Attorney error does not constitute exceptional circumstances for purposes
of Rule 60(b)(6), and such claims for relief should be raised under Rule 60(b)(1).
Solaroll Shade & Shutter Corp., 803 F.2d at 1133. Thus, the district court did not
abuse its discretion in denying relief under Rule 60(b)(6).
Given the circumstances presented in this case, we also cannot say that the
district court abused its discretion in denying the Rule 60(b)(1) motion. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113
S. Ct. 1489, 1498 (1993); In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295
(11th Cir. 2003). The only reason given for Allen’s failure to comply fully with
the district court’s sanctions order was a vague and summary reference to “a
breakdown in communication and organization.” No declarations or other
6
We review a district court’s order denying a Rule 60(b) motion for abuse of discretion.
Solaroll Shade & Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1131-32 (11th Cir.
1986). To show abuse of discretion, the appellant must demonstrate not only a justification for
relief, but “a justification so compelling that the court was required to vacate its order.” Id. at
1132.
8
evidence was submitted to support this claim. Nor did Allen elaborate upon what
was meant by such a breakdown.7
We agree with the district court that this explanation was insufficient to
support a finding of excusable neglect. This is particularly true when considered
in the context of Allen’s counsel’s other failures to respond to: (1) Dockery’s
discovery requests; (2) Dockery’s good faith letter; and (3) the resulting motion to
compel. Allen’s counsel’s prior conduct was not only dilatory but also non-
responsive over a period of two months in violation of the Federal Rules of Civil
Procedure and the district court’s Local Rules.
We emphasize that this was not just a failure to meet a deadline imposed by
court rules. The deadline Allen missed was imposed by a court order that
explicitly warned Allen that a failure to comply would result in the dismissal of his
case. Furthermore, there is no evidence in the district court record that Allen ever
complied with the district court’s order to pay Dockery $1,000. Indeed, Allen’s
7
On appeal, Allen’s counsel attempts to offer a more detailed explanation for his failures,
including attaching exhibits to his appeal brief filed for Allen. Specifically, Allen’s counsel, Jim
Smith, contends that his firm lost its other two attorneys, both of whom also had worked on
Allen’s case. Meanwhile, Smith went on vacation between December 21, 2007 and January 6,
2008, during the time discovery responses were due, and inadvertently failed to file a leave of
absence with the district court. None of these facts or exhibits were before the district court
when it ruled on the Rule 60(b) motion and, thus, we do not consider them. We note, in any
case, that these facts do not explain why Jim Smith failed to respond to Dockery’s good faith
letter by January 7 or to Dockery’s January 11 motion for sanctions or to comply fully with the
district court’s February 14 sanctions order.
9
Rule 60(b) motion did not even address his failure to pay the $1,000, let alone
represent that payment was forthcoming. Given the history of dilatory and non-
responsive conduct during discovery and the failure to pay the $1,000, we cannot
say Allen’s counsel’s vague and conclusory justification was so compelling that
the district court was required to vacate the final judgment.
AFFIRMED.
10