UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Developer Finance Corporation
and Prescott Orchards Land
Development, LLC
v. Civil N o . 10-cv-462-LM
Opinion N o . 2012 DNH 077
Chicago Title Insurance Company
O R D E R
In an order dated March 6, 2012, document n o . 3 9 , the court
granted summary judgment to Prescott Orchards Land Development,
LLC (“Prescott”) in its declaratory judgment action against
Chicago Title Insurance Company (“Chicago Title”). Before the
court is Chicago Title’s motion for relief from judgment. In a
nutshell, Chicago Title asks the court to vacate its judgment
and then revisit its summary-judgment ruling, taking into
consideration the memorandum of law it failed to submit in
support of its objection to Prescott’s motion for summary
judgment. Among other things, the late-filed memorandum argues
that Prescott had the burden of proving coverage under a policy
of title insurance issued to it by Chicago Title, rather than
Chicago Title having the burden of proving lack of coverage.
Prescott objects. For the reasons that follow, Chicago Title’s
motion for relief from judgment is denied.
In its motion, Chicago Title invokes Rule 60 of the Federal
Rules of Civil Procedure, but does not cite any specific part of
that rule as the basis for the relief it seeks. Rule 60(a)
pertains to the corrections of clerical mistakes and,
consequently, does not seem to apply. The applicable provision
would appear to be Rule 60(b), which describes six grounds for
granting relief from judgment:
(b) Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the
court may relieve a party or its legal
representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect;
(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier
judgment that has been reversed or vacated;
or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 6 0 . As noted, Chicago Title does not invoke any
of the specific provisions of Rule 60(b). Relying on Cheshire
2
Medical Center v . W.R. Grace & Co., 767 F. Supp. 396, 397 n.1
(D.N.H. 1991), Prescott urges the court to construe Chicago
Title’s motion as being based on Rule 60(b)(6). In Cheshire
Medical, Judge Devine explained:
Although plaintiff does not cite any specific
rule under the Federal Rules of Civil Procedure, the
court construes the motion as one for relief from
judgment under Rule 60(b)(6), Fed. R. Civ. P., which
provides for relief from judgment for “any other
reason justifying relief from operation of the
judgment.” The court does not construe the instant
motion as seeking relief pursuant to sections 1
through 5 of Rule 60(b), as none of the specific
reasons for relief set forth in those sections are
raised here.
Id. Chicago Title, like the plaintiff in Cheshire Medical, did
not cite any specific part of Rule 6 0 . But, Chicago Title does
say that
[a]s the court implicitly recognized . . . through
mistake, inadvertence or excusable neglect, counsel
for Chicago Title filed Chicago Title’s Memorandum of
Law in Support of Cross-Motion for Summary Judgment As
to Liability on Count II as attachment #1 to its
Objection to Motion for Summary Judgment As to
Liability Under Count II on January 3 0 , 2012, instead
of the Memorandum of Law in Support of Objection to
Plaintiff’s Motion for Summary Judgment As to
Liability Under Count I I .
Def.’s Mot. for Relief from J. (doc. n o . 4 0 ) , at 1-2. While the
court disagrees with the suggestion that it has already
determined that Chicago Title’s failure to file the correct
memorandum qualifies as “mistake, inadvertence or excusable
3
neglect” for purposes of Rule 60(b)(1), the court has no
difficulty construing Chicago Title’s motion as seeking relief
under that provision. Accordingly, the court turns to the
question of whether Chicago Title is entitled to relief under
Rule 60(b)(1).
“Relief under Rule 60(b) is ‘extraordinary in nature’ and
is therefore ‘granted sparingly.’” Caisse v . DuBois, 346 F.3d
213, 215 (1st Cir. 2003) (per curiam) (quoting Karak v . Bursaw
Oil Corp.,
288 F.3d 1 5 , 19 (1st Cir. 2002)). The Caisse court
elaborated:
To succeed on a Rule 60(b) motion, the movant must
show that (1) the motion is timely, (2) exceptional
circumstances justify granting extraordinary relief,
and (3) vacating the judgment will not cause unfair
prejudice to the opposing party. See Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local N o . 59
v . Superline Transp. Co., 953 F.2d 1 7 , 19-20 (1st Cir.
1992). In addition, the movant must show that
granting the motion will not be an “empty exercise” by
demonstrating that the underlying claim for relief is
likely to succeed on the merits. Id. at 2 0 .
Caisse,
346 F.3d at 215.
Chicago Title, which has the burden of proving its
entitlement to relief, asks the court to exercise its
discretion, and invokes the principle of fundamental fairness,
but does not address any of the factors identified in Caisse,
much less show that it has satisfied them. That should be the
end of the matter. However, Chicago Title’s motion is plainly
4
timely, see Fed. R. Civ. P. 60(c)(1), and the court will proceed
on the assumption that granting it would not cause unfair
prejudice to Prescott. Accordingly, the court turns to the
legal standard for granting relief under Rule 60(b)(1).
The starting point is the Supreme Court’s decision in
Pioneer Investment Services C o . v . Brunswick Associates Limited
Partnership, 507 U.S. 380 (1993). In that case, the Court
rejected an argument that “any showing of fault on the part of
[a] late filer would defeat a claim of ‘excusable neglect.’”
Id. at 388. To the contrary, it held that
by empowering the courts to accept late filings “where
the failure to act was the result of excusable
neglect” . . . Congress plainly contemplated that the
courts would be permitted, where appropriate, to
accept late filings caused by inadvertence, mistake,
or carelessness, as well as by intervening
circumstances beyond the party’s control.
Id. (citation omitted).
The court of appeals for this circuit has construed the
Pioneer Investment standard in the context of motions for relief
under Rule 60(b)(1):
Rule 60(b)(1), the provision relevant here, requires a
showing of “excusable neglect” to win relief from a
final judgment. This is a demanding standard. See
Coon [v. Grenier], 867 F.2d [73,] 76 [(1st Cir.
1989)]. It allows the court, “where appropriate, to
accept late filings caused by inadvertence, mistake,
or carelessness, as well as by intervening
circumstances beyond the party’s control.” Pioneer
Inv. Servs. C o . v . Brunswick Assoc. Ltd. P’ship, 507
5
U.S. 3 8 0 , 388 (1993). . . . We have said that, while
other factors play an important role in the “excusable
neglect” analysis, “the reason-for-delay factor will
always be critical to the inquiry . . . .” Hospital
del Maestro v . Nat’l Labor Relations Bd., 263 F.3d
173, 175 (1st Cir. 2001) (quoting Lowry v . McDonnell
Douglas Corp., 211 F.3d 4 5 7 , 463 (8th Cir. 2000)).
United States v . $23,000 in U.S. Currency,
356 F.3d 1 5 7 , 64 (1st
Cir. 2004) (footnotes and parallel citations omitted). 1
As $23,000 explained, a Rule 60(b)(1) analysis hinges on
the reason for the late filing. Chicago Title, however, offers
no assistance on this point; it provides no explanation of any
sort for its failure to file the correct memorandum of law in
support of its objection to Prescott’s summary-judgment motion.2
By failing to offer any explanation for its mistake, Chicago
Title also precludes itself from establishing the “exceptional
circumstances” required by Caisse, 364 F.3d at 215. In any
event, in the absence of any explanation from Chicago Title, the
court is left to presume that it filed the wrong memorandum as a
1
The court of appeals also explained that while “the
‘excusable neglect’ standard at issue in Pioneer arose under the
bankruptcy code, the court’s analysis applies to the ‘excusable
neglect’ standard as used throughout the Federal Rules of Civil
Procedure, including Rule 60(b).” $23,000, 356 F.3d at 164 n.7
(citations omitted).
2
As best the court can tell, Chicago Title takes the
court’s recognition of its mistake, in its summary-judgment
order, as a determination that it has satisfied the Rule
60(b)(1) standard. By noting Chicago Title’s mistake in its
summary-judgment order, the court was most assuredly not “prequalifying” any potential Rule 60(b)(1) motion.
6
result of a garden-variety clerical mix-up. That is not enough
to satisfy the Rule 60(b)(1) standard.
In Stonkus v . City of Brockton School Department, the court
of appeals affirmed “the district court’s decision refusing to
allow Stonkus to belatedly oppose the defendants’ motion for
summary judgment.” 322 F.3d 9 7 , 101 (1st Cir. 2003). The
plaintiff in Stonkus gave two reasons for its tardy filing,
“confusion over filing dates and busyness.”
Id. The court
observed that those reasons held “little water,”
id., and then
continued:
We have repeatedly held this type of counsel
error to be inadequate to support a determination of
excusable neglect within the meaning of Fed. R. Civ.
P. 60(b)(1). de la Torre [v. Continental Ins. C o . ] ,
15 F.3d [12,] 15 [(1st Cir. 1994)] (fact that
appellant’s attorney was “preoccupied” with other
matters did not constitute excusable neglect), and
cases cited. “Most attorneys are busy most of the
time and they must organize their work so as to be
able to meet the time requirements of matters they are
handling or suffer the consequences.” Id. (quoting
Pinero Schroeder v . FNMA, 574 F.2d 1117, 1118 (1st
Cir. 1978) (internal quotation marks omitted)).
Id.; see also Negron v . Celebrity Cruises, Inc., 316 F.3d 6 0 , 62
(1st Cir. 2003) (explaining that “routine carelessness by
counsel leading to a late filing is not enough to constitute
excusable neglect” under Rule 60(b)(1)) (citing Graphic Commc’ns
Int’l Union, Locan 12-N v . Quebecor Printing Providence, Inc.,
270 F.3d 1 , 6-7 (1st Cir. 2001); Mirpuri v . ACT Mfg., Inc., 212
7
F.3d 6 2 4 , 630-31 (1st Cir. 2000)). Chicago Title has not
provided any explanation for its failure to file the correct
memorandum of law. Based upon well-established First Circuit
precedent, it seems clear that Chicago Title has failed to
satisfy the threshold standard for relief under Rule 60(b)(1).
In Caisse, the court of appeals also held that a party
seeking relief under Rule 60(b) “must show that granting
the motion will not be an ‘empty exercise’ by demonstrating
that the underlying claim for relief is likely to succeed
on the merits.” 346 F.3d at 215 (citation omitted).
Chicago Title’s motion founders on that requirement as
well.
Chicago Title’s principal argument is that the court
erred, in the summary-judgment order, by imposing the
burden of proving non-coverage on i t , rather than placing
the burden of proving coverage on Prescott. That argument
is unavailing.
In its late-filed memorandum of law, Chicago Title
advanced the following argument:
The Court has interpreted RSA 491:22(c) to mean
that when there is no underlying action in state or
federal court, the provisions of RSA 491:22(a),
imposing the burden of proof concerning coverage on
the insurer, and RSA 491:22(b), allowing reasonable
costs and attorneys fees to a prevailing insured, do
not apply. See Freudenberg-Nok General Partnership v .
8
Liberty Mutual Ins. Co., 1994 WL 263786 at n.6, citing
Allenstown v . National Casualty Co., 36 F.3rd 229,
232-234 (1st Cir. 1994); see also, New Hampshire Ball
Bearings v . Aetna Casualty and Surety Co., 43 F.3rd
749, 752 (1st Cir. 1995) (“[b]ecause there is no
underlying state court lawsuit in this case, the
burden-shifting framework of New Hampshire’s
declaratory judgment act, NH. Rev. Stat. Ann. §
491:22, does not apply and the burden of establishing
coverage remains with the plaintiff )
(emphasis supplied); Suburban Const. Co., Inc. v .
Sentry Ins., 1994 WL 263789 at *4 (D.N.H.) (“Before a
litigant in federal court can benefit from the burden-shifting and fee award provisions of New Hampshire’s
declaratory judgment statute, that party must first
meet the conditions for obtaining declaratory relief
in state court); Town of Peterborough v . The Hartford
Fire Ins. Co., 824 F. Supp. 1102, 1107 (D.N.H. 1993)
(“[t]he plain language of RSA 491:22(c) confers no
broader jurisdiction upon this court than that which
is conferred upon a state court under RSA 491:22.”). 3
Def.’s Mem. of Law (doc. 4 0 - 1 ) , at 9-10 (footnotes omitted). In
its motion for relief from judgment, Chicago Title focuses on
New Hampshire Ball Bearings and Suburban Construction.
In New Hampshire Ball Bearings, the court of appeals for
the First Circuit did, indeed,
note that the district court properly found that,
because there is no underlying state court lawsuit in
this case, the burden shifting framework of New
Hampshire’s declaratory judgment act, N.H. Rev. Stat.
Ann. § 491:22, does not apply and the burden of
establishing coverage remains with the plaintiff.
3
While Chicago Title begins its argument by referring to
“[t]he Court,” the New Hampshire Supreme Court, which is the
court that matters most when it comes to construing New
Hampshire statutes, does not appear ever to have interpreted RSA
491:22-c in the manner described by Chicago Title.
9
43 F.3d at 752 (citation omitted). However, in EnergyNorth
Natural Gas, Inc. v . Associated Electric & Gas Insurance
Services, Ltd., Judge Barbadoro identified the foregoing
statement as dictum, 21 F. Supp. 2d 8 9 , 91 (D.N.H. 1998), and,
after an extensive analysis, determined “that the New Hampshire
Supreme Court would not interpret the law in the manner
suggested by the Ball Bearings court’s dictum,”
id. at 9 4 . On
that basis, he declined to follow the Ball Bearings dictum in
the case before him. See
id. This court is persuaded by Judge
Barbadoro’s reasoning in EnergyNorth, and declines to follow the
dictum from New Hampshire Ball Bearings.
In the other case on which Chicago Title relies, Suburban
Construction, Judge McAuliffe observed that “[b]efore a litigant
in federal court can benefit from the burden shifting and fee
award provisions of New Hampshire’s declaratory judgment
statute, that party must first meet the conditions for obtaining
declaratory relief in state court.” N o . CIV. 90-379-M, 1994 WL
263789, at *4 (D.N.H. Mar. 2 1 , 1994) (citing Allenstown v . Nat’l
Cas. Co., N o . 90-501, slip o p . at 12-13 (D.N.H. July 1 6 , 1993)).
Suburban Construction, however, involved issues entirely
different from those presented in this case. As Judge McAuliffe
explained:
10
The New Hampshire declaratory judgment remedy is
available in state court (1) when the party seeking
determination of insurance coverage files a petition
within six months of the filing of the underlying writ
and (2) when the underlying action is pending in New
Hampshire state court. Scully’s Auto–Marine
Upholstery, Inc. [v. Peerless Ins. Co.,] 136 N.H.
[65,] 67 [(1992)]; Jackson v . Federal Ins. Co., 127
N.H. 2 3 0 , 233 (1985); see also RSA 491:22. Suburban
filed this declaratory judgment petition 17 months
after Exxon brought its third party complaint in the
underlying action, which underlying action was pending
in federal court. Because neither condition of RSA
491:22 has been met, Suburban cannot invoke its
remedies in this declaratory judgment action. See
Allenstown, N o . 90–501 at 11–13; see also RSA 491:22–
c.
Id. (footnote omitted). Because Suburban Construction involved
a declaratory judgment petition filed more than six months after
the underlying writ, rather than a petition filed in the absence
of an underlying writ, Judge McAuliffe’s opinion says nothing of
any relevance to the issue before this court. Moreover, even if
that case were on all fours with this one, the court would
decline to follow i t , for the same reasons articulated by Judge
Barbadoro in EnergyNorth.
Finally, Chicago Title’s newly filed memorandum of law
cites two other cases for the proposition that “when there is no
underlying action in state or federal court, the provisions of
RSA 491:22(a) . . . and RSA 491:22(b) . . . do not apply.”
Def.’s Mem. of Law (doc. n o . 4 0 - 1 ) , at 9 (emphasis in the
original). But, neither of those two cases actually states the
11
proposition for which Chicago Title cites them, or even
addresses the same issue. See Freudenberg-NOK Gen. P’ship v .
Liberty Mut. Ins. Co., N o . C-91-361-M, 1994 WL 263786, at *7 n.6
(D.N.H. Mar. 2 1 , 1994) (“Because this declaratory judgment
petition was brought within six months of Acme’s writ being
filed in Merrimack County Superior Court, both conditions of RSA
491:22 have been satisfied, and its remedies would have been
available to Freudenberg in state court.”); Town of Peterborough
v . Hartford Fire Ins. Co.,
824 F. Supp. 1102, 1107 (D.N.H.
1993).
In sum, there is nothing in Chicago Title’s newly filed
memorandum of law that would have caused this court to place the
burden of proving coverage on Prescott. That is yet another
ground for denying Chicago Title’s motion for relief from
judgment. See Caisse, 346 F.3d at 215. Moreover, as Chicago
Title’s remaining arguments are premised on its unavailing
theory that “the burden of proof to demonstrate coverage under
the Policy is properly imposed upon Prescott,” Def.’s Mot. for
Relief from J. (doc. n o . 4 0 ) , at 6, any further consideration of
that memorandum would, necessarily, be an “empty exercise,”
Caisse,
346 F.3d at 215 (citation omitted). That i s , a full-
scale consideration of Chicago Title’s late-filed memorandum
would not lead to a different outcome.
12
To conclude, Chicago Title is not entitled to the
extraordinary remedy of relief from judgment because it never
addressed the Caisse factors, never even attempted to explain
the reasons why it failed to file the proper memorandum of law,
and seeks to vacate the court’s judgment to pursue arguments
premised on an incorrect allocation of the burden of proof.
Accordingly, Chicago Title’s motion for relief from judgment,
document no. 40, is denied.
SO ORDERED.
Landya^^afferty
United States Magistrate Judge
April 25, 2012 ^
cc: Conrad WP Cascadden, Esq.
Paul R. Kfoury, Sr., Esq.
Martha Van Oot, Esq.
13
