United States District Court, W.D. Louisiana, Lake Charles Division
MATHESON TRI-GAS, INC.
WILLIAMSON GENERAL CONTRACTORS, INC.
D. CAIN, JR. UNITED STATES DISTRICT JUDGE
the court is a Motion to Vacate [doc. 116] filed under
Federal Rules of Civil Procedure 6(b)(1)(B) and 60(b)(1) by
defendant Williamson General Contractors, Inc.
("Williamson"), in response to the Memorandum
Ruling [doc. 114] and Judgment [doc. 115] of this court
granting the Motion for Summary Judgment [doc. 110] filed by
plaintiff Matheson Tri-Gas, Inc. ("Matheson").
Matheson opposes the Motion to Vacate and Williamson has
filed a reply. Docs. 119, 120.
action arises from contract disputes between Matheson and
Williamson for work on Matheson's construction of a new
gas plant in Westlake, Louisiana. The facmal background has
been summarized at length in the court's prior opinions.
See, e.g., Matheson Tri-Gas, Inc. v. Williamson
Gen. Contractors, Inc., 2019 WL 1562247, at
*1 (W.D. La. Feb. 28, 2019), report and
recommendation adopted, 2019 WL 1561369 (W.D. La. Apr. 10,
2019). Matheson seeks damages from Williamson based on its
alleged abandonment of the project after its demands for
additional sums were unmet, and subrogation to the rights of
any subcontractors whose liens it was required to satisfy as
a result of Williamson's alleged abandonment.
Id. Williamson also filed several counterclaims,
most of which were dismissed on a prior motion for summary
judgment. Id. However, its counterclaims for bad
faith breach of contract and detrimental reliance remained
before the court. Id.
to the instant motion, Matheson filed a Motion for Partial
Summary Judgment [doc. 105] on May 17, 2019, asserting that
it is entitled to judgment as a matter of law on its claim
for indemnity under the Louisiana Private Works Act
("LPWA"), La. Rev. Stat. § 9:4801 et
seq. Doc. 105. Williamson opposed the motion. Doc. 108.
On June 7, 2019, the same day that Williamson filed its
opposition to the motion for partial summary judgment,
Matheson also moved for summary judgment ("second motion
for summary judgment") on Williamson's two remaining
counterclaims. Doc. 110. A notice of motion setting was
issued on June 10, 2019, and specified that Williams's
opposition to the second motion for summary judgment was due
within 21 days after service of the motion in accordance with
Local Rule 7.5. Doc. 111. Williams did not file any
opposition within that time. The court therefore treated the
second motion for summary judgment as unopposed when it ruled
on July 30, 2019, and granted both motions. See doc.
114. As to the latter it noted that Matheson's statement
of uncontested material facts must be accepted as true due to
Williamson's failure to oppose the motion. Id.
two days of that ruling, Williamson filed the instant motion
to vacate. Doc. 116. Here it admits that notice of the new
filing was received by lead counsel. Doc. 116, att. 2,
¶¶ 7-10. It explains that its failure to oppose the
second motion for summary judgment [doc. 110] was due to
counsel's mistake in not recognizing that the new filing
was an independent motion rather than something filed in
connection with the motion for partial summary judgment,
filed the same day. Accordingly, it requests that the court
vacate its ruling as to the second motion for summary
judgment and allow it (Williamson) time to file a response.
Matheson opposes the request. Doc. 119.
brings this Motion to Vacate under Federal Rules of Civil
Procedure 6(b)(1)(B) and 60(b)(1). Rule 6(b)(1)(B) provides
that the court may, at a party's motion, extend a
deadline even after it has passed if the party failed to act
because of excusable neglect. Meanwhile, Rule 60(b) provides
several grounds for granting relief from a final judgment,
order, or proceeding, including "mistake, inadvertence,
surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1).
Because Williamson could not be granted leave to oppose the
second motion for summary judgment without the court's
ruling first being vacated, the court addresses the grounds
for relief under Rule 60(b) first and only considers
extension of the deadline if it vacates the judgment.
under Rule 60(b) is an extraordinary remedy that should only
be granted in unusual or unique circumstances. Pryor v.
U.S. Postal Service, 769 F.2d 281, 287 (5th Cir. 1985).
The availability of such relief does not trump a party's
duty of diligence, and the court would abuse its discretion
if it were to grant relief when the only justification
"is one attributable solely to counsel's
carelessness with or misapprehension of the law or the
applicable rules of court." Edward H. Bohlin Co.,
Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir.
1993) (citing Knapp v. Dow Corning Corp., 941 F.2d
1336, 1338 (5th Cir. 1991)). "Calendaring errors and
mistakes about deadlines qualify as a careless mistake of
counsel." Rayford v. KarlStorz Endoscopy Am.,
Inc., 740 Fed.Appx. 435, 437 (5th Cir. 2018) (collecting
cases). Accordingly, Rule 60(b) is "inapplicable to
provide relief from the errors that counsel... committed
during the actual representation of their clients."
Assoc. Marine Equip., LLC v. Jones, 301 Fed.Appx.
346, 350 (5th Cir. 2008); see also Pryor, 769 F.2d
at 289 ("While we are sympathetic to the plight of a
client prejudiced by his attorney's inadvertence or
negligence, the proper recourse for the aggrieved client ...
is to seek malpractice damages from the attorney.") Here
the only justification for relief is counsel's error in
not recognizing the filing of a second motion for summary
judgment or filing a timely response. Under Bohlin
and Pryor, then, the motion should be denied.
argues that counsel's neglect is nonetheless excusable.
It first argues that the court must examine its motion
liberally, under the standards applicable to setting aside
default judgments. As Matheson asserts, however, entry of
summary judgment did not take effect of a default judgment in
this matter. Instead, Williamson had already made an
appearance and submitted responsive pleadings in this matter,
and the court considered the record (including
Williamson's exhibits on the prior motion for summary
judgment) before reaching a decision. Accordingly, Williamson
is entitled to no special consideration in its motion to
vacate. Accord Smith v. Alumax Extrusions,
Inc., 868 F.2d 1469, 1471-72 (5th Cir. 1989).
also notes that, because its motion was made within
twenty-eight days of judgment, it may be considered under the
less "exacting" standards of Rule 59(e) as a motion
to alter or ament a judgment. See Artemis Seafood, Inc.
v. Butcher's Choice, Inc., 1999 WL 1032798, at *l-*2
(N.D. Tex. Nov. 10, 1999). To prevail on such a motion,
however, a party is still required to show (1) that the
motion is necessary to correct a manifest error of fact or
law; (2) the movant presents newly discovered or previously
unavailable evidence; (3) the motion is necessary in order to
prevent manifest injustice; or (4) the motion is justified by
an intervening change in the controlling law. Flynn v.
Terrebonne Par. Sch. Bd,348 F.Supp.2d 769, 771 (E.D.
La. 2004). Only the third factor is potentially relevant
here. The case law in this circuit on ...