Alvarado v. Manhattan Worker Career Center 
<br><br> 
 U.S. District Court
 Southern District of New York
 <br><br>
 Judge Motley
 <br><br>
 The history of this case is set out completely in previous opinions issued
 by this court and does not need to be recounted in full. To summarize, on
 September 9, 2002, defendants moved pursuant to Fed.R.Civ.P. Rule 37 to
 dismiss plaintiff's case or to direct the parties that as a condition to
 proceeding with the case, plaintiff must pay defendants' costs and
 attorneys' fees associated with an extended discovery dispute. At a hearing
 on October 8, 2002, the defendants asserted their Rule 37 arguments and
 presented detailed and documented allegations of misconduct on the part of
 plaintiff and/or his attorney, Michael R. Bressler. Based on this evidence,
 the court precluded the plaintiff from relying on certain evidence and
 granted defendants' request for leave to move for summary judgment.
 <br><br>
 On November 13, 2002, the day on which plaintiff's reply to defendants'
 summary judgment motion was due, Mr. Bressler wrote to the court to request
 an extension. The court denied this eleventh-hour request, observing: "In
 light of the court's knowledge of the irresponsible dilatory tactics
 employed by plaintiff's counsel in this case, the court sees no reason to
 allow for an extension." See Order, November 13, 2002. On December 9, 2002,
 the court issued a Memorandum Opinion and Order granting defendants' motion
 for summary judgment and granting defendants' motion for costs and fees
 associated with the discovery dispute. See Alvarado v. Manhattan Worker
 Career Center, et. al., 2002 WL 31760208 (S.D.N.Y Dec. 9, 2002).
 <br><br>
 Thereafter, defendants Manhattan Worker Career Center ("WCC") and Career
 Blazers Learning Center ("CLBC") submitted affidavits accompanied by time
 and billing details, setting forth fees and costs which they believed
 plaintiff should pay in connection with the discovery dispute.
 Characteristic of his behavior throughout the course of this case,
 plaintiff's attorney failed to respond to defendants' submissions. On
 January 27, 2003, the court issued an opinion addressing the reasonableness
 of defendants' requested fee and costs awards. See Alvarado, 2003 WL 194203
 (S.D.N.Y. Jan. 28, 2003). After examining its affidavit and time and billing
 diaries, the court awarded WCC fees and costs of $7,360.00 against plaintiff
 Felix Alvarado and his attorney Michael R. Bressler. The court made explicit
 reference to Mr. Bressler's responsibility for the misconduct, noting: "In
 light of Mr. Bressler's individual participation in the misconduct addressed
 in the December 9[, 2002] Opinion, this sanction shall be imposed jointly
 and severally on plaintiff and Mr. Bressler." Id. at 3 (citing New Pacific
 Overseas Group (U.S.A.) Inc. v. Excal Int'l Development Corp., 2000 WL
 377513 at 10 (S.D.N.Y. April 12, 2000); Mackler Productions, Inc. v. Cohen,
 146 F.3d 126 (2d Cir. 1998). In an opinion dated April 1, 2003, the court
 awarded attorneys fees and costs (in a significantly higher amount, due to
 the attorney's high billing rate) to CBLC against plaintiff Felix Alvarado
 and his attorney, Michael R. Bressler. See Alvarado, 2003 WL 1741183 at 4
 (S.D.N.Y. April 1, 2003). Again, the court noted: "In light of Mr.
 Bressler's individual participation in the misconduct addressed in the
 December 9, 2002 Opinion, this sanction shall be imposed jointly and
 severally on plaintiff and Mr. Bressler." Id. (citing same).
 <br><br>
 Plaintiff, who has fired his attorney and is now pro se, moves for relief
 from judgment under Fed.R.Civ.P. 60(b). Plaintiff claims, inter alia, that
 Bressler did not inform him of developments in the case; that Bressler did
 not inform him of the judgment; that Bressler lied and told him that the
 case was still open and moving toward settlement. For the reasons set forth
 below, plaintiff's motion is DENIED.
 <br><br>
 ANALYSIS
 <br><br>
 Under Rule 60(b), a court may exercise its discretion to relieve a party
 from a final judgment for (1) mistake, inadvertence, surprise, or excusable
 neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void;
 (5) the judgment has been satisfied; or (6) any other reason justifying
 relief from the operation of the judgment. See Fed.R.Civ.P. 60(b); Broadway
 v. City of New York, 2003 WL 21209635 at 2 (S.D.N.Y. May 21, 2003).
<br><br> 
 When considering a motion pursuant to Rule 60(b), the court must "strike a
 balance between serving the ends of justice and preserving the finality of
 judgments." Baker v. Nemaizer, 793 F.2d 58, 61 (2d Cir. 1986). "A motion for
 relief from judgment is generally not favored and is properly granted only
 upon a showing of exceptional circumstances." United States v. Int'l Bhd. of
 Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). "Generally courts require that
 the evidence in support of the motion to vacate a fnal judgement [under Rule
 60(b)] be 'highly convincing' . . . " Gwynn v. Deleo, WL 125185, at 4
 (S.D.N.Y. July 3, 1991) (quoting Kotlicky v. U.S. Fidelity & Guar. Co., 817
 F.2d 6, 9 (2d Cir. 1987). While a court will read a pro se litigant's papers
 liberally and interpret them to raise the strongest arguments they suggest,
 Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), a pro se litigant is not
 excused from the requirement of producing highly convincing evidence to
 support a Rule 60 (b) motion. Dais v. Lane Bryant, Inc., No. 97 Civ. 2011,
 2002 WL 417242, at 2 (S.D.N.Y. Mar. 15, 2002) (internal citations and
 quotation marks omitted).
<br><br> 
 Here, subsections (1) and (6) apply to plaintiff's claim that his attorney
 lied to him about his case and failed to oppose defendants' summary judgment
 motion or their submissions regarding attorney's fees. See SEC v. McNulty,
 137 F.3d 732 (2d Cir. 1998) (failure of defense attorney to respond to the
 complaint properly reviewed under Rule 60(b)(1) and (b)(6)); Cobos v.
 Adelphi University, 179 F.R.D. 381 (E.D.N.Y. 1998) (Rule 60(b)(1) and (b)(6)
 are the relevant provisions for analyzing a party's claim for relief from
 judgment based on counsel's mismanagement of the case).
<br><br> 
 A. Plaintiff is not entitled to relief under Rule 60(b)(1)
<br><br> 
 In order for a court to grant relief from a final judgment under Rule
 60(b)(1), the court must first determine whether the order from which relief
 is sought resulted from "excusable neglect." Fed.R.Civ.P. 60(b)(1); Pioneer
 Inv. Servs., Inc. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 381,
 113 S.Ct. 1489 (1993). In the Second Circuit, gross negligence is not an
 excusable form of neglect. Cobos v. Adelphi University, 179 F.R.D. at 387.
 As such, an attorney's mistake or omission based on ignorance of the law,
 failure to follow rules and deadlines, inability to handle caseload and
 complete and total disregard for client rights or professional ethics are
 not bases for relieving a party from a final judgment. See Canfield v. Van
 Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997); Dominguez v.
 United States, 583 F.2d 615, 616 (2d Cir. 1978) (per curiam); Nemaizer, 793
 F.2d at 62; United States v. Cirami, 535 F.2d 736, 741 (2d Cir. 1976)
 ("Cirami I"); Cobos v. Adelphi University, 179 F.R.D. 381 (E.D.N.Y. 1998).
 The reason behind this seemingly harsh rule is that generally, "the conduct
 of an attorney is imputed to his client, for allowing a party to evade the
 consequences of the acts or omissions of his freely selected agent would be
 wholly inconsistent with our system of representative litigation, in which
 each party is deemed bound by the acts of his lawyer-agent." Aalmuhammed v.
 Kesten, 2003 WL 118512 (S.D.N.Y. Jan. 14, 2003) (citing cases). See also SEC
 v. McNulty, 137 F.3d at 739, citing Link v. Wabash R.R. Co., 370 U.S. 626,
 633-34 (1962).
<br><br> 
 Plaintiff's claim essentially boils down to one of gross negligence and
 malfeasance on the part of his attorney. Because these errors and omissions,
 while no doubt objectionable, are inexcusable error under the Rule, the
 court cannot grant him relief from judgment under Rule 60(b)(1).
<br><br> 
 B. Plaintiff is not entitled to relief under Rule 60(b)(6)
<br><br> 
 Although Rule 60(b)(6) "represents a grand reservoir of equitable power that
 should be liberally applied," United States v. Cirami, 563 F.2d 26, 32 (2d
 Cir. 1977), in order for a court to grant relief from a final judgment under
 this provision, the movant must show that there are extraordinary
 circumstances justifying relief, the judgment works an extreme hardship, and
 the asserted grounds for relief are not recognized in subsections (1)-(5) of
 the Rule. Nemaizer, 793 F.2d at 63. See also Pioneer, 507 U.S. at 392, 113
 S.Ct. 1489; Teamsters, 247 F.3d at 391-92.
<br><br> 
 As with claims falling under Rule 60(b)(1), gross negligence is not a basis
 for relief under Rule 60(b)(6). United States v. Cirami, 563 F.2d 26, 30 (2d
 Cir. 1977) ("Cirami II"); Nemaizer, 793 F.2d at 63 (citing cases). In rare
 instances, however, a court will grant relief under Rule 60(b) if the movant
 can make a particularized showing that his or her attorney's conduct stemmed
 from exceptional circumstances. See Dominguez, 583 F.2d at 617; Cirami II,
 563 F.2d at 35; Olszewski v. Bloomberg L.P., 2000 WL 977850 (S.D.N.Y. July
 14, 2000). Exceptional circumstances include, for example, an attorney's
 psychological disorder that rendered him constructively absent throughout
 the course of the action. Cirami II, 563 F.2d 26. Once the movant shows
 exceptional circumstances, the movant must provide further evidence
 demonstrating his or her own diligent efforts to induce the attorney to
 "fulfill his duty." Dominguez, 583 F.2d at 618.
<br><br> 
 Applying all of these factors, relief under this provision was appropriate
 where the movants faced a quarter of a million dollar judgment after their
 attorney failed to respond to a summary judgment motion, they made a strong
 showing of having a meritorious claim, their attorney disappeared due to
 mental illness, and they produced evidence demonstrating they diligently
 induced their lawyer to fulfill his duty. Cirami II.
<br><br> 
 Here, by sharp contrast, although plaintiff's application to appear in forma
 pauperis and the size of the attorney's fees suggests that the judgment
 works extreme hardship, plaintiff has not presented any evidence that his
 attorney's shortcomings were the result of exceptional circumstances.
 Because such a showing is a prerequisite to relief under Rule 60(b)(6), the
 court cannot relieve plaintiff from its earlier judgments under section
 (b)(6) absent such a showing.
<br><br> 
 C. Plaintiff is not entitled to relief from judgment because he cannot show
 he has a meritorious claim.
<br><br> 
 "Even where the movants show that their motion to reopen is encompassed by
 the grounds enumerated in Rule 60(b), they must still show that they possess
 a meritorious claim before they can prevail." Cobos, 179 F.R.D. at 389,
 citing Cirami II, 563 F.2d at 29; Babigian v. Association of the Bar of the
 Cit of New York, 144 F.R.D. 30, 33 (S.D.N.Y 1992) (citing Lepowski v. United
 States Dep't of Treasury, 804 F.2d 1310, 1314 (D.C.Cir. 1986)).
<br><br> 
 Plaintiff sued the defendants for race and gender discrimination and
 retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
 §2000(e); 42 U.S.C. §1981, the New York State Human Rights Laws; and the New
 York City Human Rights Laws. The court granted summary judgment to
 defendants on the Title VII claim because a) it is unclear whether the
 defendant against whom the claim was asserted is subject to Title VII and b)
 even if it is, the record was bereft of any evidence suggesting plaintiff
 could make out a prima facie case of discrimination under the statute. The
 court dismissed plaintiff's New York State and City claims because plaintiff
 already filed a discrimination charge with the New York State Division of
 Human Rights (NYSDHR), thereby precluding his claims before the court.
 Similarly, the court dismissed plaintiff's Section 1981 claim because this
 court should give NYSDHR's finding of "no probable cause" preclusive effect.
 Given that the court decided plaintiff's claims are precluded as opposed to
 merely inadequate as a matter of law, even if the court were to grant relief
 from this decision and allow plaintiff to reopen his case, plaintiff would
 fare no better in a second action. Because his claims are not meritorious,
 the court cannot relieve him from judgment under Rule 60(b).
<br><br> 
 Conclusion
<br><br> 
 While the plaintiff's portrayal of his lawyer's representation, if true, may
 be grounds for plaintiff to report his lawyer to an ethics committee or
 bring a separate civil action against him, because he cannot show that his
 lawyer's malfeasance, lies, and errors stemmed from extraordinary
 circumstances or that his underlying claim is meritorious, this court cannot
 grant him relief from judgment under Fed.R.Civ.P. 60(b). Plaintiff's motion
 is DENIED.
<br><br> 
 So Ordered.