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Kier v. Lowery

United States District Court, N.D. Oklahoma

March 15, 2017

JULIE KIER, Plaintiff,
ROSEANN C. LOWERY, an individual, and PROGRESSIVE NORTHERN INSURANCE CO., a foreign Insurance Company, Defendants.



         Before 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).

         Plaintiff filed this case in Delaware County District Court on November 5, 2015 against defendants Roseann C. Lowery and Progressive Northern Insurance Company (“Progressive Northern”).[1] 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).

         On June 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.

         I. Plaintiff's Request for an Extension of Time or Leave to File out of Time (Docs. 20, 21).

         Plaintiff's 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. 17).[2] Plaintiff argues that the Court should grant her Motion under the excusable neglect provision of Fed.R.Civ.P. 60.

         Rule 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).

         Importantly, 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).

         In 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).

         Plaintiff's 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.

         A. Plaintiff's Motion to Dismiss Removal and Remand for Lack of Jurisdiction (Doc. 17)

         Plaintiff's 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).

         As 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.[3]

         With 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 constitute service.

         Administrative Guide, page 3. Further, attorneys are “required to comply with Administrative Guide procedures regarding Change of Contact Information.” LCvR 5.5(a).

         Counsel 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.[4] 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 60(b)(1).”).

         Nor may 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.[5] 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.

         B. Plaintiff's Response to Defendant Lowery's Motion to Dismiss ...

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