Kevin L. Noah v. Bond Cold Storage ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3511
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Kevin L. Noah, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Bond Cold Storage, *
* [PUBLISHED]
Appellee. *
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Submitted: May 12, 2005
Filed: May 23, 2005
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Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
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PER CURIAM.
Kevin L. Noah sued Bond Cold Storage, his former employer, alleging
discrimination and retaliation in the workplace. The district court1 dismissed his
lawsuit with prejudice after Noah failed to comply with a scheduling and trial order
and then failed to respond to an order to show cause why the matter should not be
dismissed. Noah now appeals the district court's denial of his second motion to set
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
aside the judgment for excusable neglect under Federal Rule of Civil Procedure
60(b)(1). We affirm.
The district court issued a scheduling and trial order on March 11, 2004,
directing the plaintiff to file by June 1, 2004, a designation of each incident of
discriminatory treatment that might be offered at trial. Noah failed to comply with
this order and did not seek leave to file the designation out of time. Bond Cold
Storage was consequently unable to file its list of affirmative defenses to each
incident by June 14, 2004, as required by the scheduling and trial order, and it
therefore moved the court to dismiss the complaint for Noah's failure to designate any
incidents of discriminatory treatment. On June 18, 2004, the district court entered an
order requiring the plaintiff to show cause by July 1, 2004, why his complaint should
not be dismissed for his failure to comply with the scheduling and trial order. Noah
failed to respond to the show-cause order, and as a result, the district court dismissed
his complaint with prejudice on July 9, 2004. See Fed. R. Civ. P. 41(b) (authorizing
dismissal of an action for the plaintiff's failure to comply with any order of court).
On July 19, 2004, Noah's attorney filed a motion to set aside the dismissal but
provided no reason for not complying with the court's orders other than that he
intended to file the list electronically in response to the court's show-cause order but
mistakenly did not do so before he left for vacation in late June. He attached a list of
discriminatory treatment incidents but offered no excuse for not complying with the
court's original scheduling and trial order deadline of June 1. On August 4, 2004, the
district court denied the motion. On August 6, 2004, in a second motion to set aside
the judgment, Noah's counsel informed the district court that he did not timely file the
designation of incidents by June 1 because his busy schedule diverted his attention.
On September 9, 2004, the district court denied the second motion to set aside the
dismissal, concluding that neither counsel's carelessness nor busy schedule
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constituted excusable neglect for purposes of Rule 60(b)(1). Noah filed a notice of
appeal on October 6, 2004.
Noah did not file a notice of appeal within 30 days after the August 4 denial
of his first postjudgment motion. See Fed. R. App. P. 4(a)(4)(A)(vi) (permitting the
time for appeal to begin running after the entry of an order disposing of a Rule 60(b)
motion that was filed within ten days of judgment). His second postjudgment motion
was a timely-filed Rule 60(b) motion, but because it was not filed within 10 days of
the dismissal, it did not toll the time for appeal of the original dismissal. See id.
Thus, Noah's October 6 notice of appeal is timely only with respect to the district
court's September 9 order denying his second Rule 60(b) motion to set aside the
judgment. See Fed. R. App. P. 4(a)(1)(A) (requiring a notice of appeal to be filed
"within 30 days after the judgment or order appealed from is entered").
An appeal from the denial of a Rule 60(b) motion does not raise the underlying
judgment for our review but only the question of whether the district court abused its
discretion in ruling on the Rule 60(b) motion. Sanders v. Clemco Indus., 862 F.2d
161, 169 (8th Cir. 1988). We will find an abuse of discretion only when the district
court's judgment was based on clearly erroneous fact-findings or erroneous
conclusions of law. Roark v. City of Hazen, 189 F.3d 758, 761 (8th Cir. 1999).
"Reversal of a district court's denial of a Rule 60(b) motion is rare because Rule 60(b)
authorizes relief in only the most exceptional of cases." Int'l Bhd. of Elec. Workers
v. Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir. 2002).
Under Rule 60(b)(1), a district court may grant relief from a judgment on the
grounds of "mistake, inadvertence, surprise, or excusable neglect." The term
"excusable neglect" in this context is generally "'understood to encompass situations
in which the failure to comply with a filing deadline is attributable to negligence.'"
Union Pac. R.R. v. Progress Rail Servs. Corp., 256 F.3d 781, 782 (8th Cir. 2001)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 394 (1993)).
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To be excusable, however, the neglect must be accompanied by a showing of good
faith and some reasonable basis for not complying with the rules. Ivy v. Kimbrough,
115 F.3d 550, 552 (8th Cir. 1997). It is generally held that "excusable neglect" under
Rule 60(b) does not include ignorance or carelessness on the part of an attorney.
Hunt v. City of Minneapolis, 203 F.3d 524, 528 n.3 (8th Cir. 2000); Hoffman v.
Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969). Neither a mistake of law nor the
failure to follow the clear dictates of a court rule constitutes excusable neglect. See
Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 404 (8th Cir. 2000).
Here, the district court's scheduling and trial order clearly required Noah to file
a designation of incidents of discriminatory treatment by June 1, yet Noah failed to
comply. Further, the order to show cause clearly warned that a failure to respond
would result in a dismissal of the complaint, yet Noah failed to respond. In support
of his second Rule 60(b) motion, Noah's counsel stated that his concentration was
focused on other matters because his schedule was "unusually complicated after a
holiday weekend." (App. at 135.) Noah asserts that the failure to comply with the
court's orders should be overlooked because he was not dilatory in other discovery
matters in this case and because Bond Cold Storage does not demonstrate that it
suffered prejudice from his failure to comply with the court's orders.
After considering all of the relevant circumstances, we find no abuse of
discretion in the district court's denial of Rule 60(b) relief in this matter. See Ceridian
Corp., 212 F.3d at 403 ("Whether a party's neglect of a deadline may be excused is
an equitable decision turning on 'all relevant circumstances surrounding the party's
omission.'" (quoting Pioneer, 507 U.S. at 395)). Noah has not demonstrated that the
facts surrounding his failure to comply with the scheduling and trial order or the order
to show cause amounted to excusable neglect on his part within the meaning of Rule
60(b). An attorney's failure to follow the clear dictates of a court order does not
amount to excusable neglect. See id. at 404.
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Accordingly, we affirm the district court's September 9, 2004, denial of relief
under Rule 60(b)(1).
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