United States Court of Appeals
For the First Circuit
No. 17-1385
PATRICK SKRABEC; NEIL SKRABEC; AND MARY ANN SKRABEC,
Plaintiffs, Appellants,
v.
TOWN OF NORTH ATTLEBORO; DANIEL ARRIGHI; JOSHUA MCMAHON; KEVIN
MCKEON; JOHN DOES 1 THROUGH 20,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Levy, District Judge.*
Jeffrey B. Pine, Maria F. Deaton, and Lynch & Pine LLC on
brief for appellants.
Jason W. Crotty and Pierce Davis & Perritano LLP on brief for
appellees.
December 18, 2017
* Of the District of Maine, sitting by designation.
I. INTRODUCTION
LEVY, District Judge. This appeal arises from the grant of
the Defendants’ summary judgment motion following the Plaintiffs’
failure to oppose the motion within the timeframe set by the
district court. The Plaintiffs, citing excusable neglect, sought
relief from the judgment pursuant to Federal Rule of Civil
Procedure 60(b)(1), which the court denied. Finding no error, we
affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In December 2012, during the week following the shooting at
Sandy Hook Elementary School, Patrick Skrabec — then a student at
North Attleboro High School — was arrested after telling high
school classmates that “he would like to shoot up the school.”
Skrabec v. Town of North Attleboro, 321 F.R.D. 46, 47 (D. Mass.
2017). Patrick was charged with the misdemeanor offenses of
threatening to commit a crime, Mass. Gen. Laws ch. 272, § 2, and
disturbing a school assembly, Mass. Gen. Laws ch. 272, § 40. Id.
Following a jury trial, Patrick was acquitted of both charges.
Id.
In the wake of his acquittal, Patrick and his parents, Neil
and Mary Ann Skrabec, (collectively, the “Skrabecs”), filed suit,
alleging that by arresting and prosecuting Patrick, the Town of
North Attleboro, along with the Town’s Detective Daniel Arrighi,
and Police Officers Joshua McMahon and Kevin McKeon,
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(collectively, the “Town”), (1) conspired to violate and violated
Patrick’s constitutional rights under 42 U.S.C. § 1983, (2) acted
negligently, (3) negligently inflicted emotional distress,
(4) committed malicious prosecution, and (5) deprived Neil and
Mary Ann Skrabec of consortium with their son, Patrick. Id. The
Town answered and raised affirmative defenses. Following a
scheduling conference, the district court ordered the parties to
file dispositive motions by October 31, 2016, and their opposition
to any motions by November 30, 2016. Thereafter, the Skrabecs
sent the Town a settlement demand letter on October 3, 2016.
Sadly, on October 20, Patrick passed away at the age of 21.
The Town filed its motion for summary judgment on October 28.
The motion asserted that probable cause did in fact exist to arrest
Patrick; the individual defendants were entitled to qualified
immunity; the defendants' conduct was not sufficiently outrageous
to impose liability for intentional infliction of emotional
distress; and the Skrabecs’ parental loss of consortium claim was
not recognized under Massachusetts law.
On November 21, the Skrabecs’ attorney e-mailed the following
message to the Town’s attorney:
Hi Jason—
If you have a few minutes either today or tomorrow I’d
like to touch base with you on this. As you know Patrick
passed away and just want to get your take on where we
stand.
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I think our Demand and your Motion for Summary Judgment
were sent out within a few days of each other, and we
haven’t discussed either since.
Thanks,
Jeff
The Town’s attorney responded by e-mail less than an hour later:
Jeff,
I’m in the office all day tomorrow. Feel free to give me
a call at your convenience.
Regards,
Jason
Despite this e-mail exchange, there were no additional
communications between the attorneys until after the November 30
deadline for the Skrabecs to file their opposition to the motion
for summary judgment had passed. On December 7, the Town’s
attorney e-mailed the Skrabecs’ attorney, inquiring, “Can you tell
me what your current settlement demand is so that I can pass same
along to my client? Thanks.” The Skrabecs’ attorney replied within
minutes, renewing the Skrabecs’ previous settlement demand “for a
couple of weeks,” and stating that the offer would be withdrawn if
“it [didn’t] look like a December settlement” would be achieved.
The record does not reflect any further communication between the
attorneys.
On December 28, almost a month after the Skrabecs’ opposition
to the Town’s summary judgment motion was due, the district court
granted the Town’s unopposed motion for summary judgment. Two
days later, the Skrabecs filed their motion for relief from
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judgment on the ground of excusable neglect.1 See Fed. R. Civ. P.
60(b)(1) (permitting a court to relieve a party from a final order
if there was “mistake, inadvertence, surprise, or excusable
neglect”). The Skrabecs based their request on their attorney’s
belief “that there was an understanding between counsel that they
[(the Skrabecs)] would have an opportunity to object to the Motion
for Summary Judgment in the event that settlement discussions did
not progress.” Although Patrick Skrabec’s death was mentioned in
the Skrabecs’ motion and in their reply memorandum, it was not
cited as a reason for the Skrabecs’ failure to oppose the Town’s
summary judgment motion. The Town, in its opposition to the
Skrabecs’ Rule 60(b)(1) motion, did not dispute that there had
been a settlement demand by the Skrabecs and communications between
counsel, but asserted that the Town had never made a settlement
offer and there was no agreement between the attorneys to extend
the November 30 deadline for the Skrabecs to oppose the Town’s
summary judgment motion.
In denying Rule 60(b)(1) relief, the district court
emphasized that the Skrabecs’ failure to oppose the summary
1The Skrabecs’ motion was titled “Plaintiffs’ Motion to Set
Aside the Judgment Under Rule 60.” The motion identified excusable
neglect as the sole ground for relief. The district court’s
decision referred to the motion as a “Motion to Alter the
Judgment.” We employ the terminology of Fed. R. Civ. P. 60, thus
referring to the Skrabecs’ motion as a motion for relief from
judgment. See Fed. R. Civ. P. 60.
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judgment motion was not excusable.2 Skrabec, 321 F.R.D. at 48.
The court characterized the Skrabecs’ belief that a settlement was
forthcoming based on sparse e-mails exchanged between counsel as
“exalt[ing] hope over reason.” Id. at 48 (quoting Nansamba v. N.
Shore Med. Ctr., Inc., 727 F.3d 33, 38 (1st Cir. 2013)). Moreover,
the court determined that even if a settlement was imminent, it
would not justify the Skrabecs’ attorney’s assumption that he did
not need to oppose the Town’s motion for summary judgment without
having either obtained the Town’s consent or having sought an
extension of the deadline from the court. Id. at 49. This appeal
followed.
III. LEGAL ANALYSIS
Federal Rule of Civil Procedure 60(b) relieves parties from
final judgments only under exceptional circumstances. See Dávila-
Álvarez v. Escuela de Medicina Universidad Cent. del Caribe, 257
F.3d 58, 63–64 (1st Cir. 2001) (citing Lepore v. Vidockler, 792
F.2d 272, 274 (1st Cir. 1986)). A party seeking Rule 60(b) relief
must show, at a bare minimum, “that his motion is timely; that
exceptional circumstances exist, favoring extraordinary relief;
that if the judgment is set aside, he has the right stuff to mount
2 In this context, an attorney’s negligence is imputed to the
clients. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 396 (1993) (rejecting the argument that “it
would be inappropriate to penalize respondents for the omissions
of their attorney” in favor of a policy holding parties accountable
for the acts and omissions of their counsel).
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a potentially meritorious claim or defense; and that no unfair
prejudice will accrue to the opposing parties should the motion be
granted.” Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir.
2002) (internal citations omitted).
A party seeking relief under the “excusable neglect” prong of
Rule 60(b)(1) must additionally show that its conduct meets that
standard. Excusable neglect “requires more than a showing of
neglect simpliciter; it requires a further showing that the neglect
is excusable.” Nansamba, 727 F.3d at 38. Deciding whether conduct
is excusable is an equitable determination. See Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 389
(1993). Four factors are generally considered in connection with
a request for relief from a judgment that was issued as a result
of a missed deadline: (1) the danger of prejudice to the non-
moving party, (2) the length of the delay and its potential impact
on the judicial proceedings, (3) the reason for the delay,
including whether it was within the control of the movant, and (4)
the movant’s good faith. Id. at 395; see also Sheedy v. Bankowski,
875 F.3d 740, 745 (1st Cir. 2017) (emphasizing that excusable
neglect is a demanding standard and reiterating the four Pioneer
factors) (internal citations omitted). While each potential
factor should be weighed, there is ultimately a thumb on the scale
because “[w]ithin the constellation of relevant factors, the most
important is the reason for the particular oversight.” Nansamba,
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727 F.3d at 38–39 (citing Dimmitt v. Ockenfels, 407 F.3d 21, 24
(1st Cir. 2005)).
We review the denial of a Rule 60(b) excusable neglect motion
under an abuse-of-discretion standard. Bouret-Echevarría v.
Caribbean Aviation Maint. Corp., 784 F.3d 37, 43 (1st Cir. 2015)
(citing Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir. 1997)).
The standard is deferential, and we will not lightly substitute
our judgment for that of the trial court, which is more familiar
with the case and its management. See Lamboy-Ortiz v. Ortiz Vélez,
630 F.3d 228, 236 (1st Cir. 2010); see also Santos-
Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016) (“The
trial judge has wide discretion in this arena, and we will not
meddle unless we are persuaded that some exceptional justification
exists.”) (internal quotation marks omitted).
Here, the Skrabecs contend that they failed to respond to the
motion for summary judgment because of their attorney’s good faith
belief that he and the Town’s attorney understood that the Skrabecs
were not required to oppose the motion so long as settlement
discussions were ongoing. That belief, however, was unsupported.
The attorneys had not discussed extending the November 30 deadline
for the filing of the Skrabecs’ opposition. The Skrabecs’
attorney’s belief that the Town’s attorney had agreed or would
agree to an extension was no more than an assumption. Thus, the
attorney’s failure to timely file an opposition to the Town’s
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summary judgment motion, or to move the court to extend the
deadline, was not excusable. Where, as here, a moving party
proffers “no valid reason for the noncompliance, the protestations
of good faith . . . plainly do not suffice as grounds for setting
aside the district court’s determination that his mistake could
not be considered ‘excusable neglect.’” Dimmitt, 407 F.3d at 25.
The Skrabecs seek to bolster their claim of excusable neglect
by asserting that Patrick’s death “disrupted settlement
negotiations and the preparation of Plaintiffs’ case.” This
contention is unavailing. Even if, as the Skrabecs contend,
Patrick’s death disrupted the settlement negotiations and the
preparation of their case, the Skrabecs do not explain how the
death contributed to their attorney’s belief that he did not need
to oppose the Town’s motion so long as settlement negotiations
were ongoing. See Dávila-Álvarez, 257 F.3d at 65 (concluding that
even the death of counsel’s brother and law partner was not
sufficient upheaval to make counsel’s neglect excusable).
Litigants seeking to suspend formal proceedings during
settlement negotiations may alert the court and seek the extension
of an outstanding deadline. See Fed. R. Civ. P. 6(b). That did
not happen here. Without having raised the possibility of
extending the response deadline with the Town or the court, there
was no reason for the Skrabecs to assume that the deadline was
extended and that they were relieved of the need to oppose the
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summary judgment motion by November 30, as had been ordered. See
de la Torre v. Cont'l Ins. Co., 15 F.3d 12, 15 (1st Cir. 1994)
(“The fact that settlement negotiations are in progress does not
excuse a litigant from making required court filings . . . . It
is common sense, as well as common courtesy, to alert the judge to
the ongoing negotiations and request that he or she postpone
imminent deadlines before they have expired. A litigant
who . . . fails to take that simple step courts disaster.”)
(internal citations omitted). Having weighed all of the relevant
factors, the district court acted well within its discretion in
concluding that the Skrabecs failed to demonstrate excusable
neglect.
We affirm the judgment of the district court.
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