United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Motion to Set Aside the final
judgment under Federal Rules of Civil Procedure 59 and
60(b)(1). (Doc. No. 34.) For the following reasons,
Plaintiff's motion is DENIED.
August 5, 2016, Defendant filed a motion for summary
judgment, asking the Court to dismiss this case in its
entirety. (Doc. No. 25.) On September 6, 2016, Plaintiff,
through counsel Andy Allman, filed a motion for extension of
time to file a response to the motion for summary judgment,
asking to be allowed to file a response on or before
September 20, 2016. (Doc. No. 30.) The next day, the Court
granted Plaintiff's motion as requested. (Doc. No. 31.)
However, Plaintiff's counsel failed to calendar the
extension of time, and failed to file a response. (Doc. No.
34.) On September 28, 2016, the Court deemed the Statement of
Undisputed Facts (Doc. No. 28) admitted without a response,
pursuant to Local Rule 56.01(g), and granted Defendant's
motion. (Doc. No. 32.)
September 30, 2016, Plaintiff's counsel filed the instant
motion citing “inadvertent mistake due to calendaring
error.” (Doc. No. 34.) On October 3, 2016, Defendant
filed a response, asking the Court to deny the motion because
Plaintiff has not shown excusable neglect. (Doc. No. 35.) In
the meantime, the Tennessee Supreme Court suspended
Plaintiff's counsel from the practice of law. (Doc. No.
36.) As a result, the Court held the instant motion in
abeyance until November 14, 2016, to allow Plaintiff to
supplement Mr. Allman's motion if necessary.
(Id.) Plaintiff declined to supplement the motion,
but instead relies on the response Mr. Allman filed on her
claims she files this motion under Federal Rules of Civil
Procedure 59 and 60(b)(1). The only provision of Rule 59 that
would allow the Court to review an order granting summary
judgment is Rule 59(e). See Huff v. Metropolitan Life
Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982) (treating a
motion for reconsideration as filed under Rule 59(e)). A
district court may grant a Rule 59(e) motion: “(1) to
correct a clear error of law; (2) to account for newly
discovered evidence or an intervening change in the
controlling law; or (3) to otherwise prevent manifest
injustice.” CGH Transport, Inc. v. Quebecor World,
Inc., 251 Fed.Appx. 817, 823 (6th Cir. Jan. 8, 2008)
(citing Gen Corp, Inc. v. Am. Int'l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). Under
Rule 60(b)(1), the court may relieve a party or a party's
legal representative from final judgment, order, or
proceeding if the plaintiff can prove: (1) mistake,
inadvertence, surprise, or excusable neglect; and (2) that
she had a meritorious defense. Burnley v. Bosch Americas
Corp., 75 Fed.Appx. 329, 332 (6th Cir. 2003) (quoting
Marshall v. Monroe & Sons, Inc., 615 F.2d 1156,
1160 (6th Cir. 1980)).
Plaintiff does not argue that there is a need to correct a
clear error of law, to account for newly discovered evidence
or an intervening change in the controlling law, or to
otherwise prevent manifest injustice as required under Rule
59. (Doc. No. 34.) Therefore, the Court denies
Plaintiff's motion as to Rule 59.
also has not shown any mistake, inadvertence, surprise, or
excusable neglect in support of her Rule 60 motion. Plaintiff
does not argue that there is any mistake, inadvertence, or
surprise. Plaintiffs counsel only argues, without
explanation, that he failed to calendar his requested
extension of time to respond to the summary judgment motion.
Failure to file a timely response to a motion for summary
judgment is inexcusable neglect, which is not a ground for
relief under Rule 60. Broach v. City of Cincinnati,
244 Fed.Appx. 729, 734 (6th Cir. Aug. 9, 2007); Kendall
v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984).
Therefore, Plaintiff has not proven excusable neglect.
Plaintiff does not prove that she was prejudiced by any
alleged-excusable neglect. Plaintiff still has not filed a
response to the Statement of Undisputed Facts or a memorandum
in opposition to Defendant's motion for summary judgment.
As stated in the Court's previous Order, the Court deemed
those facts as undisputed and made a de novo determination
that summary judgment was appropriate. (Doc. No. 32.) Without
responding to the Statement of Undisputed Facts, Plaintiff
cannot prove that she was prejudiced by her counsel's
failure to file a response to summary judgment because the
record currently shows that she admits all the facts
contained in the Statement of Undisputed Facts.
foregoing reasons, Plaintiffs Motion to Set Aside the
Court's Order Dismissing ...