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Polly A. Smith v. Unum Life Insurance Company of America


November 22, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff, Polly A. Smith, brought suit against Defendants UNUM Life Insurance Company of America and Chevron Texaco (collectively referred to as "Defendants") alleging unlawful denial of disability benefits. This Court dismissed the case for failure to comply with Fed. R. Civ. P. 4(m) and Local Rule 4-210(b), and for failure to file a Joint Status Report and a Response to an Order to Show Cause.

Presently before the Court is Plaintiff's motion to re-open the case pursuant to Fed. R. Civ. P. 60.*fn1 For the reasons set forth below, Plaintiff's motion, made some three and-a-half years after the matter was originally dismissed, is DENIED.*fn2


The facts of the case are undisputed.*fn3 Plaintiff worked for Chevron Texaco Corporation in California for nineteen years as a fire security specialist.

In 1987 while fighting a fire, Plaintiff was injured. As a result of the injury, Plaintiff became disabled and was reassigned to a job as a communication specialist where she remained until March 2003.

In or around March 2003, Plaintiff's physician determined that Plaintiff was permanently and totally disabled. Chevron Texaco provided Plaintiff with short-term disability coverage through UNUM Insurance Company of America (UNUM).

After the short-term plan expired, Plaintiff applied for long-term disability. In or around December 2004, UNUM sent Plaintiff a letter denying Plaintiff's request.

Shortly thereafter, Plaintiff retained attorney Sara Ray to file a complaint. After sending Ray a retainer and signed authorization, Plaintiff did not hear from Ray for several months. Plaintiff called for an update, at which point Ray stated she was preparing the complaint. A month later, Plaintiff again contacted Ray for an update. Ray told Plaintiff she filed the complaint. Plaintiff later found out that, in fact, Ray had not filed the complaint at that time. Court records indicate that Ray did not file the complaint until December 2006. It is unclear from the record, however, when Ray falsely told the Plaintiff she had filed the complaint.

Plaintiff then started a pattern of calling Ray once a month. Ray generally assured Plaintiff that the case was on track and that they were waiting to hear back from the court. Ray, however, did not attempt to solicit information or additional facts from the Plaintiff.

In or around March 2007, having grown tired of the lack of information, Plaintiff asked Ray to explain the details of the case and how much she was suing for. Ray explained that they were still waiting to hear back from the court, and that they would talk "dollars and cents" at a later time. Plaintiff continued her pattern of calling once a month.

In or around July 2008, Plaintiff moved to Tennessee to be closer to family because of health concerns. By that time, Ray had stopped returning Plaintiff's phone calls. Plaintiff decided to contact Ray's law partner, Mr. Altman. Mr. Altman, however, told Plaintiff he could not speak about the case.

Plaintiff asked a friend of hers to contact Ray. Her friend called Ray from her work number and Ray answered the phone. Ray explained that the case was on track and that she would call Plaintiff in a few days. Ray then called Plaintiff and assured her everything was fine.

At that point, Plaintiff states that she "was not very confident." So she asked Ray to send her the documents filed with the court regarding her case. Ray agreed.

Several months passed, and Plaintiff had not received the documents she requested. Plaintiff's friends and family advised her to seek another attorney. Plaintiff refused, however, because she did not want to start all over, and living in another state she felt it would make it "extremely difficult" to start over. Plaintiff decided not to fire Ray.

A year or more later, Plaintiff still had not received the documents she requested. In or about July 2009, Plaintiff called Ray for a follow-up, but Ray did not respond. In September 2009, Plaintiff sent Ray an email reminding Ray that she had not sent the documents as promised.

In November 2009, Ray finally responded by sending Plaintiff copies of the filed documents. Upon receipt, however, Plaintiff became concerned because the documents did not accurately portray the facts of the case. Plaintiff then sent several emails to Ray expressing her concern, but Ray did not respond. Plaintiff then started calling on a regular basis, leaving voice mails asking Ray to call her.

Ray did not respond until June 2010, explaining she was on jury duty. Ray told Plaintiff she would contact her the following week. Ray, however, did not call.

In August 2010, Plaintiff contacted attorney Clara Reno, an attorney assisting Plaintiff with bankruptcy proceedings, and asked her what she should do regarding Ray. Reno suggested sending a certified letter asking for a status of the case and copies of all documents filed with the court. Plaintiff did so, but the letter came back undelivered. Thereafter, Plaintiff again tried to contact Ray through phone calls and emails, but with no success.

In February 2011, Plaintiff tried calling again, but this time Ray's phone had been disconnected. Plaintiff asked attorney Reno what she should do. Reno advised her to call the California State Bar. Upon doing so, Plaintiff learned that Ray had been disbarred as of October 2010.

Plaintiff then called this Court to determine the status of her case. She learned that her case had been dismissed on September 27, 2007, after Ray had failed to appear pursuant to an Order to Show Cause issued after she failed to either timely effectuate service on Defendants or file the required Joint Status Report.

Plaintiff then brought this motion to re-open her case.


Of relevance to the issue in this case is Fed. R. Civ. P. § 60(b), which allows the court to relieve a party or its legal representative from a final judgment, order, or proceeding for, among other enumerated reasons "(6) any [] reason that justifies relief." Rule 60(b)(6) is the "catch-all" clause "intended to encompass errors or actions beyond the petitioner's control." Community Dental Services v. Tani, 282 F.3d 1164, n. 8 and n. 11 (9th Cir. 2001). Any motion under Rule 60(b)(6) must be brought "within a reasonable time." See Fed. R. Civ. P. § 60(c).

Courts use Rule 60(b)(6) "sparingly as an equitable remedy to prevent manifest injustice." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). To receive relief under Rule 60(b)(6), a party must demonstrate "extraordinary circumstances which prevented or rendered him unable to prosecute [his case]." Community Dental Services v. Tani, 282 F.3d 1164, 1168 (citing Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971) (per curiam)); see also Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010) (reciting rule above). An attorney's gross negligence constitutes such extraordinary circumstances, and is properly brought under Rule 60(b)(6). See id. at 524 (an attorney's gross negligence resulting in dismissal with prejudice for failure to prosecute constitutes an "extraordinary circumstance" under Rule 60(b)(6) warranting relief from judgment).

In Lal v. California, Shelly Lal brought suit against the California Highway Patrol for the shooting death of her husband. Lal, 610 F.3d at 520. The district court dismissed her case under Fed. R. Civ. P. 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend meetings. Id. at 521. The plaintiff was unaware that her case had been dismissed. When Lal later learned of her attorney's behavior and the dismissal of her suit, she hired another attorney and filed a motion for relief pursuant to Rule 60(b)(6). Id. at 522-23. The district court denied her motion. On appeal, the Ninth Circuit reversed. Id. at 521. It reasoned that the behavior of Lal's attorney Chesterfield Spahr constituted gross negligence. Id. at 525. The court noted that Sphar failed to make initial Rule 26 disclosures after being ordered to do so; failed to meet, confer, and participate in the joint case management conference after being ordered to do so; and failed to attend hearings... Spahr continued to tell Lal that her case was moving forward even after it had been dismissed...

Spahr repeatedly assured Lal that he would give her copies of all of the documents he falsely claimed to have filed in her case.

Id. at 525-26.

The plaintiff in Lal, although duped and kept in the dark by her attorney's behavior for a period of time, did not sit idle when her attorney's deceit became obvious. When Spahr stopped responding to the plaintiff's phone calls and failed to show up to a conference call scheduled with the plaintiff, the plaintiff decided to seek the opinion of another attorney. Id. at 522.

She learned then that her case had been dismissed ten months earlier. Plaintiff immediately took steps to find another attorney and promptly brought suit to re-open her case. Id. at 522-23.

Under these circumstances, the court held that gross negligence existed and that the plaintiff demonstrated "extraordinary circumstances beyond her control" that merited relief under Rule 60(b)(6). Lal, 610 F.3d at 526.

With respect to the issue of gross negligence as it pertains to the facts of this case, the Court agrees with Plaintiff that attorney Ray's behavior was egregious and would likely rise to the level of gross negligence. Like the attorney in Lal, Plaintiff's attorney Sara Ray failed to show up to Court when ordered to do so, led Plaintiff to believe she had filed her claim when she actually had not done so, failed to contact or follow-up with Plaintiff about Plaintiff's case, and deliberately misled Plaintiff into believing her claim was pending when in fact Plaintiff's claim had been dismissed. This Court would not find it hard to hold Ray's acts constituted gross negligence.

Gross negligence alone, however, is not enough to grant relief. The Plaintiff must also demonstrate that the gross negligence constituted an extraordinary circumstance "beyond her control." See Lal, 610 F.3d at 526; see also Tani, supra, 282 F.3d at 1171. Additionally, Rule 60(b)(6) motions must be brought within a reasonable time. See Fed R. Civ. P. § 60(c). The Plaintiff here has not made a showing that the circumstances were out of her control, or that her motion was brought within a reasonable time.

Unlike the Plaintiff in Lal who took action immediately upon suspicion that her original attorney was not representing her properly, the Plaintiff here chose not to take action even when her attorney's egregious behavior was blatantly obvious.

The Court does not fault the Plaintiff's inaction early on in the lawsuit. Indeed, between 2005 and mid-2008, attorney Ray intentionally deceived the Plaintiff by assuring the Plaintiff that her case was on track, lying about when the claim was filed, and most egregious of all, failing to tell the client that her case had been dismissed in September 2007.

However, by July 2008, attorney Ray's behavior became obvious to the Plaintiff and to those around her. For instance, Plaintiff states that Ray had stopped calling. Ray's failure to return calls prompted Plaintiff to call Ray's partner for answers. Ray's partner declined to comment, so Plaintiff asked one of her friends to call Ray directly for an update on her case. Unsurprisingly, Ray answered the call from the friend, likely because she did not recognize the phone number. Only after being caught answering the phone did Ray decide to call the Plaintiff back. At this point, Plaintiff admits she "was not very confident." Plaintiff's friends and family even advised Plaintiff to seek another attorney. By all accounts, the Plaintiff, at this juncture in the time line of events, was aware that she was not receiving proper representation.

It is the opinion of this Court that the Plaintiff should have sought the help of a second attorney at this point, or at the very least, proceeded proactively to address Ray's behavior and the lack of representation.

It was not enough that Plaintiff proceeded by asking Ray to send her the filed court documents in her case and wait for a response.

But even if a reasonable person would have proceeded as the Plaintiff did in this case, nothing excuses Plaintiff's inaction for an entire year or more while she waited to receive the requested documents. According to the Plaintiff, Plaintiff requested the documents from Ray around July 2008. Despite phone calls and emails, Ray did not provide the documents until sometime around November 2009. And even then, the filed documents did not accurately portray the facts of her case.

Thus, even if it was reasonable for Plaintiff to give Ray another chance after Ray regularly failed to respond to Plaintiff's phone calls through July 2008, Ray's subsequent behavior and inaction with respect to the requested documents should have prompted Plaintiff to fire Ray and hire another attorney. However, Plaintiff did not fire her attorney or take responsibility for her case. She waited until February 2011, when she discovered Ray's phone was disconnected, to finally take action.

Although the court is sympathetic to the Plaintiff's situation -- having been duped and misled by an attorney whom she trusted -- the Court cannot ignore the poor choices the Plaintiff made with respect to how she handled her attorney's obvious improper behavior. Accordingly, taking responsibility for her case was not beyond Plaintiff's control. Having failed to take such remedial action, Plaintiff also failed to bring her Rule 60(b) motion within a reasonable time pursuant Fed R. Civ. P. § 60 subsection (c).

That motion was not brought until March 28, 2011, more than three and-a-half years after the Court dismissed Plaintiff's complaint.


For the foregoing reasons, Plaintiff's Motion for relief (ECF No. 9) under Fed. R. Civ. P. § 60(b) is DENIED.


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