United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff’s Amended Motion to Vacate
Dismissal for Want of Prosecution (Rec. Doc.
46). Because Plaintiff has failed to allege a proper
basis for relief under Rule 60, and because the Court’s
dismissal was without prejudice (Rec. Doc. 39),
Plaintiff’s motion is denied.
AND PROCEDURAL BACKGROUND
Court assumes the reader’s familiarity with this case
and provides only a brief account of the relevant facts and
procedural history. Plaintiff Murvell Watson was injured in a
train accident traveling from Chicago, Illinois to New
Orleans, Louisiana. Watson filed suit in Illinois state
court, where Defendants subsequently removed to federal court
in the Northern District of Illinois. On June 12, 2018, The
Honorable Judge Manish S. Shah of the Northern District of
Chicago transferred the case upon Defendant’s motion to
the Eastern District of Louisiana. On December 21, 2018,
after over six months of inactivity in the case, the Court
dismissed Plaintiff’s claim without prejudice for
failure to prosecute, appear, and associate with local
counsel. Finally, on January 24, 2019, Plaintiff’s
counsel was admitted to appear pro hac
vice. On April 14, 2019, Plaintiff filed the present
motion to vacate the Court’s judgment of dismissal
without prejudice filed on December 21, 2018.
district court can grant relief from a final
judgment under Rule 60(b)(1) for “mistake,
inadvertence, surprise, or excusable neglect.” The
burden of establishing a claim for relief under Rule 60(b) is
on the movant, and the ultimate finding on a Rule 60(b)
motion is within the discretion of the district court.
Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 173 (5th Cir.1990). There is no abuse of
discretion if a Rule 60(b) motion is denied when the
justification “for relief is ‘inadvertent
mistake’ of counsel.” Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 356–57 (5th Cir.1993)
(quoting Williams, 828 F.2d at 329). Gross
carelessness, ignorance of the rules, and ignorance of the
law shall not suffice. Pryor v. U.S. Postal Serv.,
769 F.2d 281, 287 (5th Cir.1985) (quoting 11 Wright &
Miller, Federal Practice and Procedure § 2858). Rule
60(b)(6) contains a catchall provision that allows a court to
grant a Rule 60(b) motion “for any other reason that
justifies relief.” Relief under this provision,
however, is available “only if extraordinary
circumstances are present.” Hess v. Cockrell,
281 F.3d 212, 216 (5th Cir.2002).
Plaintiff gives no satisfactory justification for the six
months of inactivity on the case. Plaintiff’s primary
arguments in support of the motion are based on
Plaintiff’s difficulty of associating local counsel,
becoming admitted pro hac vice, and understanding
local rules. While sympathetic to obstacles that can arise
when a case is transferred, the Court concludes that failure
to overcome these relatively pedestrian venue transfer
obstacles does not justify relief under Rule 60(b). Rather,
Plaintiff’s, or Plaintiff’s counsel’s,
mistakes are more appropriately characterized as carelessness
or ignorance of the rules that do not justify relief. See
Pryor, 769 F.2d 281. Plaintiff does not cite any cases,
nor can the Court locate any, supporting Plaintiff’s
position that routine venue transfer hurdles justify Rule 60
Plaintiff took no official action regarding these obstacles
until after the dismissal of his case. As the court docket
reflects, Plaintiff never filed any motions asking for an
extension of time or seeking to be admitted pro hac
vice until after the judgment was entered, almost seven
months after the case was transferred. Plaintiff’s
counsel failed to appear at two separate docket calls (Rec.
Doc. 36 and 38) at which Plaintiff’s counsel could have
attempted to show good cause existed for the failure to
Plaintiff urges the Court to review its dismissal under the
heightened standards for involuntary dismissals with
prejudice. The Fifth Circuit recognizes that involuntary
dismissal with prejudice is a harsh sanction, and thus is
only justified if there is a “clear record of delay or
contumacious conduct by the plaintiff” and
“lesser sanctions would not serve the interests of
justice.” Rogers v. Kroger Co., 669 F.2d 317,
320 (5th Cir.1982) (quoting Pond v. Braniff Airways,
Inc., 453 F.2d 347, 349 (5th Cir.1972)). Many courts
also require a district court find at least one of the
following three aggravating factors present to uphold an
involuntary dismissal with prejudice: “(1) delay caused
by plaintiff himself and not his attorney; (2) actual
prejudice to the defendant; or (3) delay caused by
intentional conduct.” Price v. McGlathery, 792
F.2d 472 (5th. Cir. 1986).
standards, however, are not relevant to the present case. The
Court’s December 21, 2018 judgment dismissed
Plaintiff’s claims without prejudice.
Nonetheless, although Plaintiff makes no reference to this
legal theory in his support memorandum, it is generally
accepted that “where further litigation on the claim
will be time-barred, a dismissal without prejudice is no less
severe a sanction than a dismissal with prejudice, and the
same standard of review is used.” McGowan v.
Faulkner Concrete Pipe. Co., 659 F.2d 554 (5th. Cir.
1981). Therefore, a brief analysis of the Plaintiff’s
claim as it relates to the statute of limitations is
noted by the Honorable Samuel Der-Yeghiayan in his denial of
Defendant’s Motion to Dismiss (Rec. Doc. 13), this case
is governed by Illinois’ statute of limitations law. It
is undisputed that Illinois has a two-year statute of
limitations period for tort claims. Plaintiff’s injury
occurred on May 10, 2015, and Plaintiff filed a claim May 9,
2017. Id. Therefore, when the time period dating
from Plaintiff’s dismissal on December 21, 2018 is
combined with time already run, Plaintiff is well over the
two-year statute of limitations period. Fortunately for
Plaintiff, Illinois has a generous savings statute for claims
dismissed for a failure to prosecute.
ILCS 5/13-217 “grants a plaintiff an absolute
right to refile certain timely-filed actions within one year
of judgment, regardless of whether the applicable statute of
limitations has expired in the interim.” Bonds v.
City of Chicago, No. 16 C 5112 WL 698680 *4 (N.D.
Illinois, Feb. 2017). This includes claims that have been
dismissed for want of prosecution. Id at 2. Thus,
the Court’s dismissal of Plaintiffs claims truly was
without prejudice, as Plaintiff has a year from the date of
the dismissal to refile the claims under Illinois statute of
conclusion buttresses the Court’s holding that
Plaintiff is not entitled to relief under Rule 60(b)(6).
Because Rule 60(b)(6) is “a means for accomplishing
justice in exceptional circumstances, ” Steverson
v. GlobalSantaFe Corp.,508 F.3d 300, 303 (5th Cir.2007)
(quoting Stipelcovich v. Sand Dollar Marine, Inc.,805 F.2d 599, 604-05 (5th Cir. 1986)), it is ...