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Robb v. Norfolk & Western Railway Co.

July 17, 1997






Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 94 C 957 Robert L. Miller, Jr., Judge.

Before BAUER, Harlington WOOD, JR., and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.



This appeal concerns the issue of whether attorney negligence in missing a filing deadline may be deemed "excusable neglect" for purposes of Fed. R. Civ. P. 60(b)(1). The plaintiff-appellant, Michele A. Robb, brought a wrongful death action against the defendant-appellee Norfolk & Western Railway Company ("NWR" or "the railroad"). Because Robb's attorney failed to submit a timely brief in response to the railroad's summary judgment motion, the district court granted judgment in favor of NWR. Subsequently, the plaintiff's attorney filed a motion for relief from the judgment under Rule 60(b)(1), noting that he had reached an agreement with opposing counsel for an extension of time in which to file his responsive brief, and arguing that his failure to notify the court of this agreed-upon extension amounted to "excusable neglect." The trial judge denied the Rule 60(b)(1) motion, stating his belief that he lacked discretion to grant the motion because of what he classified as a "hard and fast" rule in this circuit that attorney negligence can never be considered "excusable neglect." However, the Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), underscored the equitable nature of a court's "excusable neglect" determination and clarified that "excusable neglect" could "encompass situations in which the failure to comply with a filing deadline is attributable to negligence." Id. at 394. Consistent with Pioneer, we remand this case to the district judge in order that he might exercise his discretion in ruling on the plaintiff-appellant's Rule 60(b)(1) motion.


The plaintiff-appellant's husband, Paul D. Robb, was killed on September 15, 1993 when the car he was driving collided with a train at a railroad crossing in Marshall County, Indiana. In 1994, Michele A. Robb, the decedent's wife, brought a wrongful death action against NWR, both individually and in her capacity as personal representative of her husband's estate. Robb alleged that the railroad (which owned and operated both the train and the railroad crossing involved in the accident), had "negligently failed to adequately protect [the decedent] from the danger of collision with oncoming train traffic." *fn1 The Robb lawsuit was filed in Indiana state court, and subsequently removed to the federal district court on the basis that the parties were of diverse citizenship. 28 U.S.C. sec. 1332.

The railroad filed a motion for summary judgment on December 1, 1995, after discovery had been completed. Robb's response to this motion was due on December 19, 1995. A final pre-trial conference was scheduled for February 5, 1996 and the trial was set for February 20, 1996. At the time the responsive brief came due in December, Robb's lead attorney, Martin W. Kus, found himself involved in "substantive and time consuming negotiations" relating to two of his other cases. He thus asked counsel for NWR if he would object to an extension of time in which to file a response to the summary judgment motion. When counsel for the railroad voiced no objection, Attorney Kus concluded that he had reached an informal, oral agreement for an extension until January 8, 1996. Notwithstanding the demands on Kus' schedule, Robb's law firm, under Kus' direction, attended to various aspects of the case, such as noticing the depositions of Mr. Robb's treating physician and nurse and various expert witnesses, responding to NWR's request for a settlement demand, forwarding a list of witnesses and exhibits to NWR's counsel, and preparing the response brief that Kus believed to be due January 8. Robb's attorney had failed, however, to notify the trial court concerning the agreement reached, nor had he obtained the court's approval for the extension, as required by local rule, which provided, in relevant part:

[E]xtensions of time shall be granted only by order of the assigned or presiding judge or magistrate for good cause shown. . . . Failure to file an answer brief or reply brief within the prescribed time period may subject the motion to summary ruling.

Northern District of Indiana Rule 7.1. On January 4, 1996, sixteen days after the response was due, the district judge granted summary judgment in favor of NWR, on the basis that the plaintiff had failed to file a response to the summary judgment motion.

On January 9, 1996, the plaintiff Robb filed a Motion to Reconsider and for Relief from Judgment, pursuant to Rule 60(b), arguing that his "mistake and inadvertence" in failing to inform the court that he and the railroad had agreed to an extension constituted "excusable neglect." At a hearing on this motion, Attorney Kus admitted that he was aware of the requirement that extensions could only be granted with the approval of the court, and conceded that he had failed to seek such approval. Robb's attorney "offer[ed] [not] by way of excuse, [but] by way of explanation" that he had failed to comply with this rule because opposing counsel had not objected to the extension and because he did not think of it due to the pressure of other professional demands on his time. Kus argued that his lack of bad faith, the fact that counsel for NWR had agreed to the extension without objection, and the substantial time devoted to preparing the case on the plaintiff's behalf all argued in favor of vacating the entry of summary judgment and deciding the case on the merits. In opposing Robb's Rule 60(b) motion, lead counsel for the railroad advised the court that he recognized the difficulty of "trying to always comply with the rules as best you can being cognizant of what they are," but also stated that, understandably, he was duty-bound to advocate that the entry of summary judgment stand. After hearing the parties' oral arguments, the trial judge reluctantly denied Robb's motion, concluding that he lacked discretion to grant relief because of what he saw as a firm rule in the Seventh Circuit "unambiguously prohibiting a grant of a Rule 60(b)(1) motion for attorney carelessness or negligence." Mem. Op. at 3-4, 6. The trial judge stated that it was not his role "to overrule circuit precedent," but he also noted that Seventh Circuit law appeared to be in tension with the Supreme Court's comparatively broad definition of "excusable neglect" in Pioneer. See 507 U.S. at 394 ("[F]or purposes of Rule 60(b), 'excusable neglect' is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.").

In concluding his memorandum opinion, the district judge made clear that he would have granted Robb's 60(b)(1) motion if not for his perception that Seventh Circuit precedent prohibited him from exercising discretion. The court observed, based upon a ten-year personal knowledge of Robb's lead attorney, that he was "among the bar's most conscientious in following the district's rules and meeting deadlines." Mem. Op. at 1. The trial court further found that the error of appellant's counsel in failing to give notice to the court of the agreed-upon extension of time was "minor," did not amount to "flouting the rules or ignoring the case," and was "sufficiently rare to allow characterization of the neglect as excusable." Id. at 6. The court concluded that if he were to grant the motion, the "only 'prejudice' to [defendant] would be that its summary judgment motion would face testing on its merits with due regard to [plaintiff's] evidence and arguments, rather than being decided in the absence of opposition." Id. It is clear from the district judge's memorandum opinion that he believed he was without discretion to consider these factors, and that for this reason he denied Robb's 60(b)(1) motion. Robb appeals.


The question presented is a narrow one: "Did the trial judge err when he concluded that he lacked discretion to determine whether the negligence of Robb's attorney amounted to ...

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