IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LOUIS LAWSON, Plaintiff

, v. MARK LYMER, ) Defendant. ) DEFENDANT'S MEMORANDUM IN OPPOSITION TO MOTION TO VACATE DISMISSAL* INTRODUCTION Plaintiff Lewis Lawson brought this personal injury action against Defendant Mark Lymer. This Court dismissed Lawson’s action after Lawson’s attorney, John Pierce, failed to respond to discovery requests and to attend a status conference. This Court later vacated the dismissal. Once again, this Court dismissed Lawson's case because his counsel failed to attend a scheduled status conference. Lawson moved to vacate the order of dismissal under Rule 60(b) (1), Fed. R. Civ. P., on the grounds of excusable neglect. Lymer respectfully requests this Court to deny Lawson’s motion because his counsel's failure to attend the scheduled status conference does not fall within the parameters of excusable neglect. ) ) ) ) ) ) )

CIVIL ACTION NO. 98-15-CIV-5-AR

*

This motion memo was adapted from an anonymous sample written by a previous Duke Law School student. It is intended to be used as an example of a multi-issue trial-level brief. Although based on federal law, several liberties have been taken for pedagogical purposes and this memorandum should not be relied upon as an accurate representation of current law.

John Pierce. (Pierce Aff. (Id. 1998.FACTS The parties are now before the Court because Lawson's counsel.) Nearly one month after filing the motion.) The Court found that Pierce’s proffered reason for failing to comply with the Court's order did not justify his noncompliance. to which Lawson failed to respond within the time allotted. ¶ 9. ¶ 2. Plaintiff. and ordered Lawson to respond to outstanding discovery requests by a second deadline or be held in contempt.).) Pierce had also failed to appear at a status conference scheduled for October 14.) Lawson also was ordered to pay Lymer’s attorney's fees in the amount of $450. 1998). resulting in the dismissal of Lawson's case. (Id. (Id. May 15.) Mark Lymer is the Defendant in this personal injury action brought by Louis Lawson. ¶ 3. for damages related to injuries sustained in an automobile accident.) The Court then ordered Lawson to respond to these outstanding discovery requests by a specified deadline (id. Lawson still had not responded to the discovery requests.) The missed status conference came after several other missed deadlines in the litigation. which Lawson also failed to meet (Disc. During the earlier discovery phase of this case. Lymer subsequently filed a motion to compel discovery. (Id. resulting in the dismissal of Lawson’s case.) The Court later granted Lawson’s motion to vacate the dismissal and rescheduled the status conference for November 27. failed to appear at a scheduled status conference. 1998. July 6. Order.) After attempting to resolve the matter through consultation with Pierce. ¶ 4. Lymer’s counsel made numerous efforts to contact Pierce by telephone and letter. (Pierce Aff. (Id. Order. Lymer had served Lawson with discovery requests. (Id. (Id. attempting to procure responses to the discovery requests.) 2 . (Disc. 1998.

the Court dismissed the case and Pierce filed the current motion to vacate the dismissal and reinstate the case. Pierce failed to attend a status conference scheduled by the Court for November 27.Finally. First Union Nat'l Bank (In re Skinner). Not every type of neglect is excusable.3d 530. Robb v. including for “mistake. 60(b). (Pierce Aff. Ltd.) After Pierce failed to appear at the November status conference. (Id. 359 (7th Cir.. inadvertence. Lawson’s motion to vacate the order of dismissal should be denied because Pierce’s failure to respond to discovery and attend status conferences is not excusable neglect. Pierce made plans to leave town on November 25. P’ship.D. v Brunswick Assocs. Apr.) The Court had scheduled the November status conference at a hearing earlier in the month. "taking account of all relevant circumstances surrounding the party's omission. surprise.98-0010-H.) The secretary failed to enter the status conference date into the computer “tickler” system according to firm procedure (id. ARGUMENT LAWSON’S MOTION TO VACATE DISMISSAL SHOULD BE DENIED BECAUSE PIERCE’S FAILURE TO ATTEND A SCHEDULED STATUS CONFERENCE DOES NOT CONSTITUTE EXCUSABLE NEGLECT." Pioneer Inv. 507 U. and Pierce had given the date to his secretary. 1998) (quoting Thompson v. Servs. R. these circumstances comprise at least four factors: (1) the danger of prejudice to the opposing 3 . ¶¶ 5. Va. ¶ 9. Civ. 533 (4th Cir. ¶ 4. at *3 (W. but she did correctly note the date of the conference in Pierce’s docket book (Seaver Aff.I.” Fed. Ry.S. 122 F. “´Run-of-the-mill inattentiveness by counsel’” is inexcusable. Later. P. ¶ 8. 380. 1996)). No. 7-8). (Id. 7. 1998 for four days. Co. 1998. Norfolk & W. A court may relieve a party from an order or judgment.. Skinner v. DuPont de Nemours & Co. To determine whether neglect is excusable. Co. ¶ 3). As defined by Pioneer. or excusable neglect.3d 354. E.A. 1997). 76 F. the trial court must weigh the equities. 395 (1993). 1998 WL 175909. CIV.

(2) the length of the delay and its potential impact on judicial proceedings. 82 F. at 396. Here. (3) the reason for the delay. Robb. An attorney is not excused for neglect that looks like “‘run of the mill inattentiveness. Pierce's failure to attend a status conference did not constitute excusable neglect under the Pioneer factors: first. Finally..’” Id.3d 738. A.3d at 362. Pierce’s reasons for failing to attend the scheduled status conference do not amount to excusable neglect. 122 F. Id. In Skinner. and (4) whether the movant acted in good faith. deadline because of slumber is fatal") (quoting In re Plunkett. an attorney’s neglect was inexcusable when he instructed his secretary to mail a brief to the courthouse one day before it was due. second. Pierce’s reasons for failing to attend the scheduled conference are not excusable neglect. although ultimate responsibility for complying with court deadlines rests on an attorney. Skinner. Counsel’s reason for failing to attend a status conference is the most important of the Pioneer factors for determining whether neglect is excusable. 122 F. 742 (7th Cir. the delay caused by Pierce’s failure to attend the scheduled status conference is not unreasonably burdensome or appreciably prejudicial to Lymer. see also Robb. his history of noncompliance with court deadlines weighs against a finding of excusable neglect. By contrast. clients "must be held accountable for the acts an omissions of their attorneys. at *3.3. In addition. 1996)). . and third.3d at 360 (finding that "inattentiveness to the litigation is not excusable" and "missing a . an attorney who had negotiated an extension of a deadline with opposing 4 . 507 U. Accordingly. Pierce’s reasons for failing to attend the scheduled status conference weigh against a finding of excusable neglect. Id. a trial judge has the discretion to consider the attorney's "overall record of compliance with court deadlines" when weighing the equities. at *3 n. . and the secretary failed to do so. 1998 WL 175909. Lawson’s motion should be denied. including whether it was within the reasonable control of the movant.party.S." Pioneer.

3d at 362. Pierce’s history of noncompliance with court deadlines weighs further against a finding of excusable neglect.) Pierce’s behavior is similar to that of the attorney in Skinner. at *3. 5 . and thus Pierce appears to have been “slumber[ing]” on the job. 122 F. in which the status conference date had been correctly entered.counsel but neglected to inform the court of the agreement was not inattentive to the litigation. "flouting the rules" of a court. Robb. who relied on his secretary to mail a brief but whose inattention to the litigation would have resulted in a missed deadline even had the secretary mailed the brief as instructed. Pierce had not informed opposing counsel of his reasons for missing the meeting or arranged for an alternative date. Unlike the attorney in Robb. Here. 122 F. Certain behaviors. an attorney’s record of “past difficulty meeting various deadlines and attending certain hearings” weighed against a finding of excusable neglect. (Pierce Aff. Pierce’s history of noncompliance with court deadlines weighs further against a finding of excusable neglect. 1998 WL 175909. or conduct that can be "characterized as egregious. at 360. Pierce’s inattentiveness to his docket book and his secretary's failures are mere run-ofthe-mill inattentiveness and weigh against a finding of excusable neglect. ¶¶ 7-8. Robb. Id." exceed the parameters of excusable neglect.3d at 360. B. at *3.3d at 360. Pierce’s reasons for failing to attend the November 27 status conference show run-ofthe-mill inattentiveness. before making travel plans. 1998 WL 175909. as an attorney’s history of noncompliance with court deadlines suggests inexcusable neglect. In Skinner. such as an attorney's repeated failure to comply with court deadlines. Pierce’s reasons for failing to attend the status conference are that (1) his secretary failed to enter the conference date in the firm's tickler system and (2) he did not consult his docket book. 122 F.

and thus his behavior cannot be called excusable neglect. Order.Alternatively. May 15. rules and meeting deadlines”). and more similar to that of the attorney in Skinner. .3d at 362. a conscientious practitioner can rely on his record of following rules and meeting deadlines to weigh in his favor.) Not only did Pierce fail to attend two consecutive status conferences. Lawson was sanctioned and the Court imposed a second order to comply with discovery requests under penalty of contempt. who had previously been sanctioned for missing deadlines and failing to appear for meetings. 9. ¶¶ 3. Order. 6 . Pierce flouted the rules of the court and repeatedly failed to comply with court deadlines. (Disc.) Despite the courtimposed deadline and numerous telephone calls and letters from Lymer’s counsel. resulting in a court order to respond by a specific deadline. C. 122 F. 1998 WL 175909.) As a result. Pierce’s four deadline violations during one year of litigation forcefully depict his practice of flouting court rules and disregarding court deadlines. on October 14. which Pierce also flouted.3d at 362 (noting that the trial judge could properly consider the attorney’s reputation as “among the bar’s most conscientious in following . . Pierce’s failure to attend the November 27 status conference was his second such episode in a short period of time. See Robb. 1998. 1998. (Id.4. he missed the first scheduled status conference only six weeks earlier. 122 F. Pierce had still not complied with the discovery request over one month later. at *3 n. (Disc. Such a history of noncompliance weighs against a finding of excusable neglect. Here. The equities weigh against a finding of excusable neglect. but he also failed to comply with Lymer’s discovery requests within the allotted time.) Pierce’s track record is distinguishable from the “’conscientious’” behavior of the attorney in Robb. (Pierce Aff. July 6.

" Id. at *3. Pierce Aff. July 6. Order. Order. ¶¶ 9). Pierce’s neglect is not excusable for the same reasons as were articulated in Skinner. May 15. The first and second Pioneer factors — length of delay and prejudice to the defendant—are “not dispositive either way. 1998. Here. the responsibility for failure to comply with a court deadline lay entirely with counsel and his secretarial staff. Id. the delay caused by Pierce’s failure to attend a status conference is probably not unreasonably burdensome or appreciably prejudicial to the Defendant in this case. 1998. 1998 WL 175909. Disc. In Skinner. 1998 WL 175909. and also similar to Skinner. Nevertheless.The equities weigh against finding excusable neglect even though the delay caused by Pierce’s failure to attend the scheduled status conference is not unreasonably burdensome or appreciably prejudicial to Lymer. Pierce has a record of flouting various deadlines and skipping certain meetings (Disc. (Pierce Aff. Pierce’s only proffered excuse is his own inattentiveness and his secretary’s mistake. Further. the neglect was not excusable because of the attorney's reasons for noncompliance and the attorney's “record of past difficulty meeting various deadlines and attending certain [meetings]. at *3. Id. Id. As in Skinner. this type of neglect is not excusable because of 7 . The Pioneer factors weigh against a finding of excusable neglect even when an attorney's neglect results in minimal delay and no appreciable prejudice to the opposing party. id..) On balance. ¶¶ 4-9). Nor did Skinner make a finding that the attorney had acted in bad faith. the length of the delay (two weeks) was not unreasonably burdensome and there was no appreciable prejudice to the opposing party. Skinner. at *3. Nor does Defendant assert that Pierce’s dilatory behavior rise to the level of bad faith. Nevertheless. 1998 WL 175909." Id. ¶¶ 7-8. and the responsibility for failure to attend the status conference lies entirely with Pierce and his secretarial staff (Pierce Aff.

Pierce’s reasons for noncompliance and his "record of past difficulty meeting various deadlines and attending certain [meetings]. even though the delay caused by Pierce’s failure to attend the scheduled status conference is not unreasonably burdensome or appreciably prejudicial. the equities still weigh against finding excusable neglect. at *3. Thus. Plaintiff's counsel's failure to attend the status conference does not fall within the parameters of excusable neglect." Skinner. ___________________ Attorney for Defendant 8 . Respectfully submitted. CONCLUSION Weighing all of the equitable factors stated above. Thus. Plaintiff's motion should be denied. 1998 WL 175909.