United States District Court, S.D. Illinois
EMPLOYERS & CEMENT MASONS #90 HEALTH & WELFARE FUND, by and through its Board of Trustees, and EMPLOYERS AND CEMENT MASONS #90 PENSION FUND, by and through is Board of Trustees, Plaintiffs,
FOURNIE CONTRACTING COMPANY, Defendant.
MEMORANDUM and ORDER
HERNDON, DISTRICT JUDGE:
before the Court is defendant's December 29, 2017 motion
for relief from Order filed May 4, 2017, Order filed June 20,
2017 and Clerk's Judgment filed June 21, 2017 pursuant to
Rule 60(b)(1) and (6) (Doc. 42). Specifically, defendant
maintains that these orders should be vacated that because
the email address of defendant's attorney, B. Jay
Dowling, was incorrectly inputted into the CM/ECF system, and
as a result neither B. Jay Dowling nor Fournie Contracting
Company received notice of the filings. On January 2, 2018,
the Court entered an Order noting that the Clerk's office
admitted to making the mistake regarding the wrong email
address and directed plaintiffs to file a response to the
motion on or before January 9, 2018 (Doc. 43). Plaintiffs did
file a response opposing the motion (Doc. 44). Based on the
following, the Court GRANTS the motion.
August 21, 2015, plaintiffs filed suit against defendant to
collect delinquent contributions and liquidated damages based
on the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. § 1002 et seq. (“ERISA”)
(Doc. 1). According to the complaint, plaintiffs are employee
benefit funds which are administered pursuant to the terms
and provisions of certain trust agreements and maintained in
accordance with the provisions of the Labor Management
Relations Act of 1947 and ERISA. Plaintiffs provide
retirement and health & welfare benefits to the employees
of participating employers who pay fringe benefit
contributions to plaintiffs on behalf of their employees
pursuant to a Collective Bargaining Agreement. Defendant is
an employer engaged in an industry within the meaning of the
provisions of ERISA and employs individuals who are members
of and represented by the Cement Masons Local #90. Fournie
Contracting Company is bound by the terms of a Collective
Bargaining Agreement with Local # 90 and is obligated to pay
fringe benefit contributions to plaintiffs on behalf of its
employees. On February 19, 2016, Fournie Contracting Company
filed its answer to the complaint (Doc. 6).
27, 2016, attorney B. Jay Dowling filed a motion to
substitute attorney (Doc. 21). In that motion, Mr. Dowling
moved to substitute his former law firm, the Law Office of
Sterling and Dowling, P.C., for himself and the law firm of
Clayborne Sabo and Wagner, LLP. The motion to substitute
contained a new email address for Mr. Dowling of
email@example.com. That same day, the Court
granted the motion to substitute (Doc. 22). The email address
inputted into the CM/ECF system for Mr. Dowling was
firstname.lastname@example.org. Thereafter, Magistrate
Judge Wilkerson held two status conferences on August 2, 2016
(Doc. 24) and on November 11, 2016 (Doc. 28) in which Mr.
Dowling participated. Subsequently, on March 10, 2017,
plaintiffs filed a motion to extend the dispositive motion
deadline and indicated that plaintiff's counsel conferred
with defendant's counsel and that defendant did not
object (Doc. 32). That same day, the Court granted the motion
and extended the dispositive motion deadline to March 22,
2017 (Doc. 34).
March 22, 2017, plaintiffs filed a motion for summary
judgment (Doc. 34). On May 4, 2017, the Court granted
plaintiffs motion for summary judgment and allowed plaintiffs
up to and including May 24, 2017 to file a motion for
attorneys' fees (Doc. 35). Defendant did not respond to
the motion for summary judgment. Plaintiffs filed its motions
for attorney fees and costs (Doc. 36) and on June 20, 2017,
the Court granted the motion for attorney fees (Doc. 37).
Again, defendant did not respond to the motion for attorney
fees and costs. The next day, the Clerk of the Court entered
judgment (Doc. 38). Finally, on December 29, 2017, defendant
filed the motion to vacate (Doc. 42). On January 2, 2018, the
Court entered an Order noting that the Clerk's office
admitted to making the mistake regarding the wrong email
address for Mr. Dowling and directed plaintiffs to file a
response to the motion on or before January 9, 2018 (Doc.
43). Plaintiffs filed its opposition (Doc. 44). As the matter
is ripe, the Court turns to address the merits of the motion.
60(b)(1) of the Federal Rules of Civil Procedure provides,
“[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for ... mistake, inadvertence, surprise,
or excusable neglect....” Fed.R.Civ.P. 60(b)(1).
“[T]here is not a “hard and fast” rule in
this circuit which bars a trial judge from exercising
discretion to determine whether attorney negligence in
missing a filing deadline may be deemed “excusable
neglect.” Robb v. Norfolk & W. Ry. Co.,
122 F.3d 354, 361 (7th Cir. 1997). Accordingly, “trial
judges are vested with discretion when determining whether an
attorney's neglect in missing a deadline is
“excusable” for purposes of Rule 60(b)(1).”
Id. at 363. ‘Excusable neglect' can
include omissions through carelessness and mistake.”
Robb, 122 F.3d at 357. “The determination of
what sorts of neglect will be considered
‘excusable' is an equitable one, taking account of
all relevant circumstances.” Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
381 (1993). These circumstances include “the danger of
prejudice to the [defendant], the length of the delay and its
potential impact on judicial proceedings, the reason for the
delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good
faith.” Id. at 395.
moves to vacate the Judgment, Order granting plaintiffs'
motion for attorney fees and costs and Order granting
plaintiffs' summary judgment motion because the failure
to receive notices of the filing of the pleadings was a
result of an incorrect email address being inputted by the
Clerk's Office into the CM/ECF system after a notice of
change of email address was provided. Defendant contends that
this constitutes good cause basis as relief from the Orders
and Judgment. Plaintiffs oppose the motion arguing that
defendant has not identified any “exceptional
circumstances” to justify the “extraordinary
remedy” of vacating the judgment and orders.
Specifically, plaintiffs maintain:
Plaintiffs empathize with Defendant's situation. However,
the Seventh Circuit clearly states that all parties, even pro
se parties, have a duty to monitor the docket, and the docket
is available 24/7 through the PACER system. …
Plaintiffs contend there were multiple times the Defendant
should have been on notice that the CM/ECF system was not
alerting defendant of the motions and notices before
Plaintiffs filed its motion for summary judgment.
Additionally, Defendant was aware that Plaintiffs intended to
file a motion for summary judgment given Plaintiffs contacted
Defendant concerning whether Defendant objected to an
extension of the deadline. Lastly, the docket is available to
on PACER at any time to check the status of a case in federal
(Doc. 44, p. 4).
pursuant to Rule 60(b)(1), the Court finds that based on the
circumstances of this case that relief is warranted as the
Clerk's Office admitted that it incorrectly inputted Mr.
Dowling's new email address after the Court granted the
motion to substitute attorney. The Court rejects
plaintiffs' argument that defendant should have known
about the motions based on the interaction between the
attorneys as it is equally true that plaintiffs' counsel
would have known that the summary judgment motion was being
contested by the defendant and that it made no sense for
defense counsel to concede the motion for summary judgment.
Further, even though defense counsel could have found the
error regarding the wrong email address (and perhaps
plaintiffs' counsel too), the Court finds that the
greater culpability appears to be on the Clerk's office
upon whom defense counsel relied to send him the notices in a
timely manner. Moreover, the record reflects that defense
counsel did make an attempt with the Clerk's Office to
make sure that it had the correct information regarding Mr.
Dowling's new information. Thus, under the facts of this
case, the Court finds relief pursuant to Rule 60(b)(1) is
the Court GRANTS the motion to vacate (Doc.
42). The Court VACATES the June 21, 2017
Judgment (Doc. 38); the June 20, 2017 Order granting the
plaintiffs' motion for attorney fees and costs (Doc. 37)
and the May 4, 2017 Order granting plaintiffs' motion for
summary judgment (Doc. 35). The Court
DIRECTS the parties to contact Magistrate
Judge Wilkerson's chambers to ...