RYAN

v.

ALLSTATE INSURANCE COMPANY

Before the Hon. Roy K. Altman: After the Plaintiffs ignored multiple Court orders, the Court exercised its inherent authority to manage its docket and dismissed their case without prejudice. The Plaintiffs then did nothing for over four months. They now ask the Court to set aside the order of dismissal. See Plaintiffs’ Motion to Vacate the Order of Dismissal (the “Motion”) [ECF No. 26].1 But, because they (still) have given no justification for the delay—and since their claims were time-barred from the beginning—their Motion is DENIED.

PROCEDURAL HISTORY

After an uneventful beginning, this case started going downhill nearly a year ago when the parties jointly asked the Court to postpone the long-scheduled mediation by two weeks, from January 8 to January 22, 2020. See Order Scheduling Mediation [ECF No. 12]; Notice of Rescheduling Mediation [ECF No. 15]. In a decision that would (ultimately) prove the old apothegm that no good 1 The Motion is now ripe: The Defendant filed a Response [ECF No. 27] (filed on June 22, 2020); the Plaintiffs never replied, see ge nerally Docket; and the time to do so has long passed, see S.D. FLA. L.R. 7.1(c)(1) (“The movant may, within seven (7) days after service of an opposing memorandum of law, file and serve a reply memorandum . . . .”). deed goes unpunished, the Court obliged. See Order Rescheduling Mediation (“Revised Order”) [ECF No. 18]. The Revised Order—like the prior one—required the parties to file a mediation report within three days of the mediation. Id. Just as it had before, the Court warned the parties that their failure to file a mediation report—this time, by the new deadline of January 25, 2020—“may result in sanctions, including dismissal without prejudice and without further notice.” Id. But the parties neither filed a mediation report nor requested an extension of time to do so. See Order of Dismissal [ECF No. 25] at 2. So, on February 1, 2020, the Court entered an Order to

Show Cause, directing the parties to file a mediation report by February⁴, 2020. See Order to Show Cause [ECF No. 20]. Again, the Court warned the parties that their failure to comply with the Court’s orders “may result in sanctions, including dismissal without prejudice and without further notice.” Id. This time, the Defendant (and only the Defendant) responded—explaining that the mediation had not taken place because the Plaintiffs were of the view that the Court had terminated the mediation deadline. See Mediation Report [ECF No. 24]. In support, the Defendant attached an email from Plaintiffs’ counsel’s paralegal (copying Plaintiffs’ counsel), in which she appeared to say precisely that. See January 17, 2020 Email from Nicole Woods [ECF No. 24-1] (“The Judge entered the attached docket entry terminating the settlement conference order. Therefore, terminating the deadline to schedule mediation.”). The Plaintiffs never responded to this Defendant-Only Mediation

Report—just as they never answered either the Court’s Revised Order or its Order to Show Cause. See generally Docket. Left with little choice—and faced with the Plaintiffs’ continued unwillingness to prosecute its own case—the Court dismissed the Complaint without prejudice. See Order of Dismissal at 2. Unsurprisingly, the Plaintiffs then did absolutely nothing—nothing that day, nothing that week, nothing that whole month. Or the next month. Or the month after that. Or even the month after that. See generally Docket. Now, more than four months later, the Plaintiffs blame their repeated disregard of this Court’s orders on a clerical mistake and ask the Court to vacate the dismissal. Mot. ¶ 17.2 In doing so, however, they do not even attempt to explain the four-plus-month delay after dismissal. See id.

THE LAW

The Plaintiffs rely on Florida Rule of Civil Procedure 1.540(b). See Mot. ¶ 18. But “federal courts sitting in diversity apply state substantive law and federal procedural law.” Gasperini v. Ctr. for Hum., 518 U.S. 415, 427 (1996). Because the process of classifying laws as either substantive or procedural can be tricky, “we do not wade into Erie’s murky waters unless the federal rule is inapplicable or invalid.” Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). Fortunately, there’s a valid Federal Rule of Civil Procedure that’s directly on point here. Rule 60 provides, in pertinent part, as follows: (a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.

(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. 60.

Defendant’s failure to cite any authority for this principle makes it difficult for the Court to rule in its favor. Defendant’s deficient memorandum of law is itself a basis to deny its motion.”). Nevertheless, the Court will give the Plaintiffs the benefit of the doubt and indulge the merits of their Motion anyway. The next problem, however, is that, since they rely exclusively on Florida law, they never get around to explaining which prong of Rule 60 (they believe) affords them relief. On the one hand, they blame their failure to mediate on “a clerical mistake”—which seems to track the language of Rule 60(a). Mot. ¶ 17. On the other hand, they also claim “mistake, inadvertence, surprise, or excusable neglect”—mirroring some of the justifications outlined in Rule 60(b)(1). Id. ¶ 18. In the end, though, whichever prong we use, the Motion fails.

ANALYSIS

Starting with the first prong of Rule 60, a court may correct a judgment under Rule 60(a) “for the purpose of reflecting accurately a decision that the court actually made.”Fed. Home Loan Mortg. Corp. v. Matassino, 517 F. App’x 687, 688 (11th Cir. 2013) (quoting Weeks v. Jones, 100 F. 3d 124, 129 (11th Cir. 1996)). Thus, a district court may not amend a judgment “to reflect a new and subsequent intent” but only to “correct clerical errors to reflect what was intended at the time of ruling.” Id. (quoting Weeks, 100 F. 3d at 128). The Plaintiffs’ lawyer says that her legal assistant interpreted an unnumbered, December³, 2019 docket entry—“***Settlement Conference terminated per chambers’ instruction. (ar²). (Entered: 12/03/2019)”—as terminating the February 25, 2020 mediation deadline the Court had set in its Scheduling Order [ECF No. 10]. See Mot. ¶ 12.3 This was not a clerical mistake. The Court, after all, intended to do precisely what it did: cancel the January 8, 2020 mediation and move it to January 22, 2020, see Revised Order—precisely as the parties had requested, see Notice of Rescheduling Mediation. And, it goes without saying, the ruling the Plaintiffs are really challenging— the dismissal—likewise resulted from no mistake. The Court—suffice it to say here—intended to dismiss their Complaint. The Plaintiffs have thus failed to meet their burden under Rule 60(a). Nor does Rule 60(b)(1) afford them relief. The Plaintiffs blame their failure to file a mediation report on “inadvertence and/or excusable neglect.” Mot. ¶ 22. Rule 60(b)(1) allows district courts to vacate judgments that result from “mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1); see also Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 394 (1993). But “Rule 60(b) motions are directed to the sound discretion of the district court,” and the Eleventh Circuit “will set aside the denial of relief from such motion only for abuse of that discretion.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F. 3d 1337, 1355 (11th Cir. 2009) (internal quotation marks omitted); see also Chege v. Georgia Dep’t of Juv. Justice, 787 F. App’x 595, 598

One might even suppose that a defendant who’s won a dismissal on technical or procedural grounds might be expected to retain its files for a time—just in case. But, where (as here) the dismissal is followed by months of inactivity and silence, a defendant can be forgiven for assuming both that the case is over and that it’s not coming back. And where a defendant (understandably) acts on that presumption—by ceasing its investigation, getting rid of old files, etc.—the degree of prejudice that would attend the reopening of the case naturally increases. That’s particularly true in cases like this one—where the dismissal follows the plaintiff’s repeated and inexcusable unwillingness to prosecute her own case. To understand why, consider two scenarios. In the one, a plaintiff’s claim is dismissed because of some legal deficiency—say, as a shotgun pleading or for failing to set out the elements of the cause of action. In this first scenario, a defendant should expect that the plaintiff will come back and remedy the problem—either by filing an amended complaint or, if the case is dismissed for lack of jurisdiction, by asking the court for some jurisdictional discovery. In these cases, then, a defendant should be prepared to continue to defend itself even after the case is dismissed—and, as such, should be expected to retain its files (not indefinitely, of course, but for a time). Consider a second scenario, though—one more akin to ours.

Second, re-opening the case would stymie, rather than promote, the efficient administration of justice. While the Eleventh Circuit has reiterated its “strong policy of determining cases on their merits,” Sloss Industries Corp. v. Eurisol, 488 F. 3d 922, 934 (11th Cir. 2007), allowing a party to ignore multiple court deadlines, to sit idly by while the case is dismissed, and then (months later) to

it is undisputed, is what’s at issue here—must be brought within one year of the insurer’s written denial of the claim. See 44 C.F.R. Pt. 61, App. (A)(1), Art. VII (R) (“[Y]ou must start the suit within one year after the date of the written denial of all or part of the claim . . . .”). The Defendant (partially)

It’s true that, if the Plaintiffs had moved expeditiously to set aside the judgment, the Court might have considered the Motion in a different light. But the Plaintiffs waited over four months to file this Motion—and, still, have given no explanation for their failure to comply with the express terms of the Order to Show Cause. As the Eleventh Circuit has said, “[a]n inexplicable delay in filing a motion to vacate” will “preclude[] relief under Rule 60(b)(1).” Simmons, 241 F. App’x at 664 (finding no excusable neglect where defendant “inexplicably waited over four months to file a motion to vacate”); In re Worldwide Web Sys., Inc., 328 F. 3d at 1292 (affirming denial of Rule 60(b) motion where party waited two months to file motion to vacate and “has not offered any reason, let alone a ‘good reason’” for the delay); E.E.O.C. v. Mike Smith Pontiac GMC, Inc., 896 F. 3d 524, 529 (11th Cir. 1990) (‘[W]e note that counsel delayed filing a motion to set aside the default until almost four months after a notice of appearance was filed. We are convinced that the district court did not abuse its discretion [in denying the Rule 60(b) motion].”); see also Cheney v. Anchor Glass Container Corp., 71 F. 3d 848, 850 (11th Cir. 1996) (reversing a denial of a Rule 60(b) motion where the delay was only six days); see also id. (“[T]he lack of prejudice to Anchor Glass, the minimal degree of delay and the reason therefor, and the lack of impact on the judicial proceedings, when coupled with the lack of bad faith on the part of Cheney, require a finding by the district court that the neglect of Cheney’s counsel was ‘excusable.’ The district court’s failure to so find and to apply the correct legal standard and factors as announced in Pioneer constitute an abuse of discretion.’’). TK “At bottom,” the decision to vacate a judgment for excusable neglect is “‘an equitable one.” Pioneer, 507 U.S. at 396. For all the reasons discussed here, the Court elects not to exercise that equitable discretion here. Accordingly, the Court hereby ORDERS and ADJUDGES that the Motion [ECF No. 26] is DENIED. DONE AND ORDERED in Fort Lauderdale, Florida,⁷ day of December 2020.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE cc: counsel of record