United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
the Court is defendant Roseann C. Lowery's Special
Appearance and Motion to Dismiss for Lack of Jurisdiction and
Brief in Support (Docs. 11, 12), plaintiff's Motion to
Dismiss Removal and Remand for Lack of Jurisdiction (Doc.
17), and plaintiff's Request for an Extension of Time or
Leave to File Out of Time (Docs. 20, 21).
filed this case in Delaware County District Court on November
5, 2015 against defendants Roseann C. Lowery and Progressive
Northern Insurance Company (“Progressive
Northern”). Plaintiff's lawsuit asserts the
following causes of action against defendant Roseann Lowery
arising out of the alleged sale of Lowery's vehicle to
plaintiff: (1) breach of sales contract, (2) conversion, (3)
breach of the express warranty of merchantability, and (4)
punitive damages. Plaintiff asserts the following causes of
action against defendant Progressive Northern related to the
insurance policy plaintiff purchased for the vehicle: (1)
breach of contract, (2) bad faith, and (3) punitive damages.
(Doc. 2, Exh. 2).
21, 2016, defendant Progressive Northern removed the action
to this Court based on federal diversity jurisdiction. (Doc.
2). At the time of removal, defendant Lowery had not yet been
served. (Doc. 2 at 5 n.2). On July 22, 2016, defendant Lowery
filed her Special Appearance and Motion to Dismiss for Lack
of Jurisdiction and Brief in Support. (Docs. 11, 12). On
September 5, 2016, counsel for plaintiff entered an
appearance. (Doc. 14). Plaintiff filed her Objection to
Defendant Lowery's Motion to Dismiss for Lack of
Jurisdiction (Doc. 16) on September 20, 2016, and filed her
Motion to Dismiss Removal and Remand for Lack of Jurisdiction
(Doc. 17) the following day. On September 27, 2016, plaintiff
filed her Request for an Exte nsion of Time or Leave to File
Out of Time. (Docs. 20, 21). Bot h defendants have objected
to plaintiff's Motion to Dismiss Removal as well as her
request for leave.
Plaintiff's Request for an Extension of Time or Leave to
File out of Time (Docs. 20, 21).
Motion requests the Court to accept out of time her Motion to
Dismiss for Removal and Remand for Lack of Jurisdiction (Doc.
16) and her Response to defendant Progressive Northern's
Motion to Dismiss for Lack of Jurisdiction (Doc.
Plaintiff argues that the Court should grant her Motion under
the excusable neglect provision of Fed.R.Civ.P. 60.
60(b)(1) allows a court to relieve a party from a
“final judgment, order, or proceeding” for
“mistake, inadvertence, surprise, or excusable
neglect.” For purposes of Rule 60(b),
“‘excusable neglect' is understood to
encompass situations in which the failure to comply with a
filing deadline is attributable to negligence . . . . a
party's failure to file on time for reasons beyond his or
her control is not considered to constitute
‘neglect.'” Pioneer Inv. Servs. Co. v.
Brunswick Assocs., 507 U.S. 380, 388 (1993). Factors a
court should assess include: (1) the danger of prejudice to
the non-moving party, (2) the length of the 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. “[F]ault in the delay remains
a very important factor-perhaps the most important single
factor-in determining whether neglect is
excusable.'” United States v. Torres, 372
F.3d 1159, 1163 (10th Cir. 2004) (quoting City of Chanute
v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th
Cir. 1994)). “A court may take into account whether the
mistake was a single unintentional incident (as opposed to a
pattern of deliberate dilatoriness and delay), and whether
the attorney attempted to correct his action promptly after
discovering the mistake.” Jennings v. Rivers,
394 F.3d 850, 857 (10th Cir. 2005).
relief under Rule 60(b) is warranted only in exceptional
circumstances. See, e.g., Felts v. Accredited Collection
Agency, Inc., 406 F. App'x 309, 311-12 (10th Cir.
2011) (unpublished); Van Skiver v. United States,
952 F.2d 1241, 1243 (10th Cir. 1991). “Carelessness by
a litigant or his counsel does not afford a basis for relief
under Rule 60(b)(1).” Pelican Prod. Corp. v.
Marino, 893 F.2d 1143, 1146 (10th Cir. 1990).
support of the Motion, plaintiff's counsel provides a
list of excuses for his untimeliness. First, counsel
represents that he did not receive the Notice of Removal
(Doc. 2), Status Report (Doc. 3), and Notice to Interested
Parties (Doc. 6) because he “simply overlooked”
updating his current e-mail address on CM/ECF, as he is not
“a regular practitioner in federal courts.” (Doc.
21 at 2). As a result, counsel states he never received
“direct notice or service of the filings” until
early August 2016. (Id. at 3). Plaintiff's
counsel maintains that he first became aware of the removal
in this case at some point in early August 2016.
(Id. at 3). However, plaintiff's counsel also
admits that he had numerous communications with counsel for
defendant Progressive Northern. (Id. at 3-4). With
respect to plaintiff's failure to timely respond to
defendant Lowery's Motion to Dismiss (Docs. 11, 12),
filed on July 22, 2016, counsel represents that he received
the motion on August 30, 2016 due to USPS erroneously placing
his mail on “hold” instead of forwarding mail to
his home address. (Doc. 21 at 4, 5). Plaintiff eventually
filed his Response on September 20, 2016. (Doc. 16).
counsel also argues-without any case law to support his
position-that his vacation time and subsequent illness
further support a finding of excusable neglect. Specifically,
counsel for plaintiff informs the Court that he is a solo
practitioner without clerical staff and closed his office
from early July 2016 through September 5, 2016 in order to
undergo oral surgery and take a vacation. (Doc. 20 at 5). Yet
as mentioned above, plaintiff's counsel asserts he
learned of removal and received the filings in August, during
his vacation and recovery time. Counsel then proceeds to
state that he was “incapable of cogent thought
processing” until September 19, 2016 due to his
diagnoses of walking pneumonia and chronic obstructive
pulmonary disease and related health issues. (Id. at
6). Counsel further describes that he underwent a
“fugue-like condition of physical and mental condition
of exhaustion and lassitude” which rendered him unable
to attend to this case in September 2016. (Id. at
6). In light of counsel's assertions, the Court addresses
plaintiff's request as to each filing below.
Plaintiff's Motion to Dismiss Removal and Remand for Lack
of Jurisdiction (Doc. 17)
Motion, although labeled as a motion to dismiss, is in
reality a motion to remand the case to state court. 28 U.S.C.
§ 1447(c) provides that a motion to remand “on the
basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
the notice of removal.” “A defect in subject
matter jurisdiction can never be waived and may be raised at
any time. A procedural defect, however, does not involve the
subject matter jurisdiction of the court and may be
waived.” Huffman v. Saul Holdings Ltd.
P'ship, 194 F.3d 1072, 1076-77 (10th Cir. 1999)
(citations omitted). There is no dispute that plaintiff's
motion to remand was untimely filed on September 21, 2016,
three months after the removal of this case. Accordingly,
analysis of plaintiff's request dictates an assessment of
the grounds upon which remand is based. Here, plaintiff's
motion for remand asserts both procedural and substantive
grounds. First, plaintiff argues that there is no diversity
of citizenship nor an amount in controversy over $75, 000
under 28 U.S.C. § 1332. Second, plaintiff argues that
removal is improper because defendant Lowery did not consent
to removal. (Doc. 17 at 2-8). Lastly, plaintiff argues that
remand is proper because he was never served with the Notice
of Removal due to his outdated email on file with CM/ECF.
(Id. at 9-17).
stated above, plaintiff's challenge to subject matter
jurisdiction cannot be waived. See Huffman, 194 F.3d
1072 at 1076. Thus, the Court will not strike the portion of
her Motion that is premised upon subject-matter jurisdiction.
However, because “[l]ack of unanimous consent is a
procedural defect, not a jurisdictional defect, ”
Farmland Nat'l Beef Packing Co. v. Stone Container
Corp., 98 Fed. App'x 752, 756 (10th Cir. 2004)
(unpublished), plaintiff's claim to this effect is
barred. Moreover, this district has rejected the practice of
tolling the thirty-day remand requirement. Kirk Family
Revocable Trust v. Flint Ridge Prop. Owners Ass'n,
2008 WL 5060209, at *3 (N.D. Okla. Nov. 20, 2008). Because
plaintiff failed to timely raise the procedural defect, it
has been waived.
respect to plaintiff's argument regarding lack of notice,
the Court cannot find that counsel's own failure to
update CM/ECF constitutes excusable neglect under the
relevant factors. While the prejudice to the defendants is
minimal given that there is no scheduling order in this case,
the Tenth Circuit has recognized that the most important
factor in assessing excusable neglect is who is to blame for
the delay. See Torres, 372 F.3d at 1163.
Counsel's own admissions, combined with this
district's rules governing CM/ECF clearly demonstrate
that the delay was solely a result of counsel's
carelessness. Specifically, LCvR 5.5(c) provides that
“receipt of the Notice of Electronic Filing generated
by the Court's Electronic Case Filing System shall
constitute the equivalent of service of the paper identified
in the notice on persons who have consented to electronic
service.” LCvR 5.5(c). The Administrative Guide of this
Court states that:
Registration as a CM/ECF user constitutes consent to
electronic service of all documents . . . in accordance with
the Federal Rules of Civil Procedure. The primary email
address in CM/ECF will be the address required by [the
Federal Rules] for service. With the exception of sealed
e-filing, transmission through the CM/ECF system to that
email address of a Notice of Electronic Filing will
Guide, page 3. Further, attorneys are “required to
comply with Administrative Guide procedures regarding Change
of Contact Information.” LCvR 5.5(a).
clearly has an ongoing obligation to update his CM/ECF
contact information, and the delay was entirely attributable
to him. Plaintiff's unfamiliarity with federal court
procedure is apparent, but the Court declines to categorize
his bewilderment as excusable neglect. Moreover, counsel
delayed requesting remand for weeks after his alleged
discovery of the removal, which further counsels against
excusable neglect. See Jennings v. Rivers, 394 F.3d
850, 857 (10th Cir. 2005) (a district court may consider
whether the attorney attempted to correct his action promptly
after discovering the mistake). Lastly, defendant Progressive
Northern's Notice of Removal and a Notice to Interested
Parties were both filed in the state court record on June 23,
2016, the same day that plaintiff filed an Amended Petition
in the state court action. It is therefore clear that counsel
was aware of the federal removal much earlier than he
asserts-regardless of whether he received the pleadings from
CM/ECF. As such, the Court cannot find an absence of bad
faith on plaintiff's part. The fact that counsel is not
“a regular practitioner in federal courts” does
not excuse him from “overlooking” his
obligations. (Doc. 21 at 2). Counsel's lack of diligence,
combined with the fact that plaintiff is entirely at fault,
counsels against a finding of excusable neglect in this
case. See Pelican Prod. Corp, 893 F.2d
at 1146 (“Carelessness by a litigant or his counsel
does not afford a basis for relief under Rule
counsel's vacation time or illness provide sufficient
ground to meet the excusable neglect standard. This is
particularly true in light of the fact that approximately two
weeks elapsed after removal and prior to counsel's
scheduled vacation and illness, yet counsel took no
action. The cases provided by defendant Lowery to
this effect are instructive. See, e.g., Magraff
v. Lowes HIW, Inc., 217 F. App'x 759, 761
(10th Cir. 2007) (unpublished) (affirming district
court's finding of no excusable neglect based on
counsel's illness because there was no evidence that
counsel was ill for the entire period of delay, nor did he
make any effort while ill to take action); Wyoming
Outfitters Ass'n v. Wyoming Game and Fish
Com'n, 20 F. App'x 794, 796 (10th Cir. 2001)
(unpublished) (no excusable neglect to justify missed filing
deadline where attorney underwent “painful and
time-consuming” physical therapy); Nolan v.
Underwriters at Lloyd's, London, 190 F.R.D. 578, 581
(D. Kan. 1999) (finding no cases where vacation time
constituted excusable neglect). Upon review of all the
circumstances, the Court finds that plaintiff has failed to
demonstrate she is entitled to relief under Fed.R.Civ.P.
60(b)(1). Accordingly, the Court denies plaintiff's
request to file out of time on procedural grounds, but may
not do so on substantive grounds.
Plaintiff's Response to Defendant Lowery's Motion to