Kingvision v. Rocca CV-00-407-JD 03/19/02
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kingvision Pay-Per-View, Ltd.
v. Civil No. 00-407-JD
Opinion No. 2002 DNH 061
John L. Rocca, et a l .
O R D E R
Pursuant to Federal Rule of Civil Procedure 60(b) (1), the
plaintiff, Kingvision Pay-Per-View Ltd., brings a motion to
vacate summary judgment based on the excusable neglect of prior
counsel. The defendants did not respond.
Background
The plaintiff entered into a licensing agreement with Don
King Productions for the exclusive rights to distribute the
November 8, 1997, Holyfield/Moorer boxing match to all commercial
establishments in New Hampshire, among other places. The
defendants own On the Rocks, a restaurant and bar in Manchester,
New Hampshire. The defendants did not purchase rights from the
plaintiff to broadcast the fight, yet the fight was seen at On
the Rocks on the evening of November 8, 1997. The defendants
assert that the fight was broadcast by use of a residential cable
box. The plaintiff brought suit against the defendants, alleging
willful violations of 47 U.S.C. § 553, § 605(a), and § 605(e)(3),
as well as common-law claims of breach of contract and breach of
implied contract.
The defendants moved for summary judgment on the statutory
violations, arguing that § 605 does not regulate their alleged
actions, and that the plaintiff lacks standing to sue under
either § 553 or § 605. In support of its arguments, the
defendants asserted that the plaintiff does not transmit its
events via coaxial cables, does not provide its events to
commercial establishments via local cable companies, and did not
have any agreement with Media One regarding the fight. The
defendants submitted a letter from Wayne Lonstein, one of the
plaintiff's attorneys, confirming those facts. The plaintiff did
not dispute these facts in its opposition to the motion. The
plaintiff also filed a cross-motion for summary judgment on the
statutory claims, incorporating the facts stated above. While
the motions were still pending, the parties filed a joint final
pretrial statement that included a written stipulation of
uncontested facts. The stipulation states that the plaintiff
provides its broadcasts to commercial establishments via
satellite or direct broadcast satellite systems, and it does not
provide broadcasts through, or contract with, local cable
companies.
On January 2, 2 0 02, the court granted summary judgment in
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favor of the defendants, holding that § 605 did not apply to the
defendants' actions, and that the plaintiff did not have standing
to sue under § 553. The plaintiff's cross-motion was
subsequently denied. The parties participated in a pretrial
conference, and on January 11, 2002, the parties notified the
court that they had reached a settlement.1 On February 13, 2002,
the plaintiff, represented by new counsel, filed a motion to
vacate the summary judgment order.
Discussion
_____ The plaintiff argues that its prior counsel, the Lonstein
Law Office, inadvertently failed to dispute certain material
facts asserted by the defendants that would have established the
plaintiff's standing to sue under § 553. Specifically, the
plaintiff now asserts that the facts concerning the plaintiff's
transmission of broadcasts confirmed by Wayne Lonstein and
undisputed throughout the summary judgment proceedings are not
correct. The plaintiff argues that prior counsel's oversight is
excusable neglect, and that the court should vacate its summary
judgment ruling.
1 Trial was scheduled for the week of January 22, 2002.
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"[T]he court may relieve a party . . . from a final
judgment, order, or proceeding for . . . mistake, inadvertence,
surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1).
" [M]otions brought under Rule 6 0 (b) are committed to the district
court's sound discretion." Torre v. Continental Ins. Co., 15
F.3d 12, 14 (1st Cir. 1994). According to First Circuit
precedent. Rule 60(b) is "'a vehicle for 'extraordinary relief,'"
and therefore " 'motions invoking the rule should be granted only
under exceptional circumstances.'" Davila-Alvarez v. Escuela de
Medicina Universidad Central del Caribe,
257 F.3d 58, 63-64 (1st
Cir. 2001), quoting Torre,
15 F.3d at 14-15 (quotations omitted).
As a general rule, a party is held accountable for the acts
and omissions of its counsel, and each party is considered to
have "notice of all facts." Link v. Wabash R. Co.. 370 U.S. 626,
633-34 (1962), quoted in Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship,
507 U.S. 380, 396-97 (1993).2 In its
discretion, however, a court may vacate a judgment based on the
excusable neglect of counsel. See Pioneer,
507 U.S. at 394
(holding that excusable neglect may be found where counsel miss
2 Although Pioneer involved bankruptcy deadlines, the
Supreme Court emphasized its test for "excusable neglect" was
intended to extend beyond the bankruptcy context. See Pratt v.
Philbrook, 109 F.3d 18, 19 & n.l (1st Cir. 1997) (applying
Pioneer test to Rule 60 (b) motion) .
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filing deadlines due to their own negligence); Graphic
Communications Int'l Union, Local 12-N v. Ouebecor Printing
Providence, Inc., 270 F.3d 1, 5-6 (1st Cir. 2001); Pratt,
109
F.3d at 19 (stating that courts would be permitted to accept late
filings caused by inadvertence, mistake, or carelessness).
Neglect must be excusable, however, to justify vacating a
judgment. See Pioneer,
507 U.S. at 395; Graphic,
270 F.3d at 5-
6. "[The] evaluation of what constitutes excusable neglect is an
equitable determination, taking into account the entire facts and
circumstances surrounding the party's omission. . . ." Davila-
Alvarez ,
257 F.3d at 64, citing Pioneer,
507 U.S. at 395.
Factors considered by the court include the danger of prejudice
to the non-movant, the length of the delay, the reason for the
delay, and whether the movant acted in good faith. Ri. The
plaintiff argues that all of these factors weigh in favor of
vacating the judgment.
To support its contention, the plaintiff submits the
affidavits of Skip Klauber, attorney-in-fact for the plaintiff,
and Julie Cohen Lonstein of the Lonstein Law Office. Julie
Lonstein affirms that: "Due to an oversight, my firm failed to
dispute these factual assertions which are, in fact, incorrect."
(Lonstein Aff. at 12.) Klauber states that the plaintiff "did
not have an opportunity to review the summary judgment opposition
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papers, containing the factual errors, before they were filed."
(Klauber Aff. at 55.) He states that when he reviewed the
summary judgment order from the court, he realized that the
court's conclusions rested on an incomplete and erroneous record
which directly resulted from prior counsel's "inadvertent failure
to put material facts before the court." (Klauber Aff. at 57.)
Unlike the bulk of cases decided pursuant to Rule 60(b)(1),
the mistake argued by the plaintiff does not involve a procedural
deadline. C f ., e.g.. Pioneer, 507 U.S. at 394-95 (filing
deadline); Graphic,
270 F.3d at 2-3 (filing deadline); Davila-
Alvarez ,
257 F.3d at 64 (failure to prosecute); Pratt,
109 F.3d
at 18-19 (settlement notification deadline); Torre,
15 F.3d at
14-15 (filing deadline). The plaintiff argues that its prior
counsel's failure to effectively oppose the defendants' summary
judgment motion on its merits constitutes neglect that could be
excused under Rule 60(b)(1). However, the plaintiff does not
point to any First Circuit precedent to support its argument, and
the court has found no authority to suggest that a Rule 60
vacateur would be appropriate in these circumstances. See
Warfield v. AlliedSiqnal TBS Holdings, Inc.,
267 F.3d 538, 543
(6th Cir. 2001) (rejecting vacateur of dismissal where plaintiff
did not provide reason for her failure to know all the obtainable
facts before her voluntary dismissal); Lavaspere v. Niagara Mach.
6
& Tool Works, 910 F.2d 167, 173 (5th Cir. 1990) (suggesting that
it would be abuse of discretion for district court to grant Rule
60(b)(1) motion based on party's failure, through carelessness,
to submit evidence in timely manner), cited in Torre,
15 F.3d at
15-16.
A party asserting excusable neglect must give a satisfactory
explanation for the neglect. See Pioneer, 507 U.S. at 395;
Graphic, 27 0 F.3d at 5; Hospital de Maestro v. Nat'l Labor
Relations B d .,
263 F.3d 173, 175 (1st Cir. 2001) (noting that
"the excuse given for the late filing must have the greatest
import" among the factors considered by the court). Here, the
plaintiff provides no excuse. The plaintiff had ample
opportunity in its objection to defendants' motion for summary
judgment and in its cross-motion for summary judgment to contest
defendants' factual allegations and to present its own version of
the facts. Klauber affirms that the plaintiff did not have an
opportunity to review the summary judgment papers prior to
filing. This may explain why the plaintiff failed to oppose the
motion effectively but it is no excuse since a plaintiff who has
chosen counsel for representation "cannot avoid the consequences
of the acts or omissions of his freely selected agent." Pioneer,
507 U.S. at 397, quoting Link,
370 U.S. at 633-34. To the extent
that Klauber's statement may be construed as an excuse, it
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carries little weight. See id.; Hospital de Maestro, 263 F.3d at
175. Lonstein affirms that her firm "failed" to dispute certain
factual allegations due to "oversight." Again, this may explain
why the failure occurred but it certainly does not amount to an
excuse for the failure.
The court concludes that the plaintiff has not articulated
any sufficient reason to excuse the failure of prior counsel to
dispute certain material facts in the defendants' summary
judgment motion. Prior counsel had a duty to consult with the
plaintiff after the defendants' summary judgment motion was filed
and to prepare an informed objection and cross-motion setting
forth any disputed material facts. For reasons that have not
been provided, counsel failed to perform this very basic duty.
The United States Court of Appeals for the First Circuit stated,
in the context of a procedural failure, "When there is no
proffered reason that would justify, or even plausibly explain,
[a] misreading of the rules," even a favorable outcome on the
remaining Pioneer factors does not excuse the party's oversight.
See Hospital de Maestro, 263 F.3d at 175. The same reasoning
applies to the facts of this case. While prior counsel's
negligence may have resulted in unfortunate consequences for the
plaintiff, the plaintiff has failed to carry its burden of
showing that the negligence was excusable and therefore warrants
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the extraordinary relief provided for under Rule 60(b)(1). The
court declines to exercise its discretion under these
circumstances to vacate the summary judgment order.
Conclusion
For the foregoing reasons, the plaintiff's motion to vacate
(document no. 35) is denied. The parties are ordered to submit
settlement documents by March 28, 2002. No extensions will be
granted.
SO ORDERED.
Joseph A. DiClerico, Jr.
District Judge
March 19, 2002
cc: Julie Cohen Lonstein, Esquire
Gregory W. Swope, Esquire
Dan A. Rosenbaum, Esquire
Roy W. Tilsley Jr., Esquire
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