Sherman v. Verizon Virginia Inc.
Sherman v. Verizon Virginia Inc.
Opinion of the Court
ORDER
The Court has before it a series of motions, all filed by the plaintiff, Diane S. Sherman, pro se. The Court makes reference to
To summarize from those Orders, the Court granted defendant’s motion for summary judgment and entered judgment in defendant’s favor on April 4, 2002; plaintiff noted her appeal, the Court having granted her an extension within which to do so after having entered an Order granting her application to proceed in forma pauperis. Later, plaintiff withdrew her appeal and, pursuant to an Order entered on June 4, 2002, the U.S. Court of Appeals for the Fourth Circuit dismissed plaintiffs appeal.
Next, on June 28, 2002, plaintiff filed a Motion for Relief From Judgement or Order pursuant to Fed.R.Civ.P. 60(b)(3). She also asked the Court to appoint an attorney to represent her. The Court arranged for a well respected employment lawyer to meet and confer with plaintiff regarding her ease. Subsequent to two meetings with her, the lawyer who conferred with plaintiff advised the Court that he was unable to represent her on a pro bono basis. Subsequently, plaintiffs motion seeking appointment of counsel was denied.
The following list embraces all pleadings now before the Court, whether filed by plaintiff or defendant:
1. Motion requesting entry of an order granting permission to obtain copies of the file without cost (Document No. 40) filed by plaintiff on May 28, 2002;
2. Motion for Relief From Judgement or Order (Document No. 48) filed by plaintiff on June 28, 2002;
3. Defendant’s Memorandum in Opposition to Plaintiffs Motion for Relief From Judgement or Order (Document No. 51) filed by defendant on July 12, 2002;
4. Motion for an Opportunity to be Heard (Document No. 53) and Memorandum in Support of Plaintiffs Motion for an Opportunity to be Heard (Document No. 54) filed by plaintiff on July 24, 2002;
5. Motion for Leave of Court (Document No. 55) and Memorandum in Support of Plaintiffs Motion for Leave of Court (Document No. 56) filed by plaintiff on July 24, 2002; and
6. Motion for Continuance (Document No. 57) filed by plaintiff on July 24, 2002.
7. Defendant’s Memorandum in Opposition to Plaintiffs Motion for Leave of Court (Document No. 59) filed on August 7, 2002.
8. Defendant’s Memorandum in Opposition to Plaintiffs Motion for Continuance (Document No. 60) filed on August 7, 2002.
9. Defendant’s Memorandum in Response to Plaintiffs Motion for an Opportunity to be Heard (Document No. 61) filed on August 7, 2002.
The Court now considers and rules on the above-referenced motions:
Plaintiffs Motion for Relief From Judgement or Order (Document No. 48) seeks relief pursuant to Fed.R.Civ.P. 60. Specifically, plaintiff seeks relief based on the following provisions:
On motion and upon such terms as are just, the Court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
Fed.R.Civ.P. 60(b)(3).
Plaintiffs Rule 60(b)(3) Motion is accompanied by Motion for Relief Exhibit Nos. 1A through II, 2, 2A through 2N, 2P, 3A through 3C, 4, and 5.
Plaintiffs claim that her lawyer failed to adequately represent her arises out of two civil actions that she prosecuted against the defendant (or defendant’s predecessor in interest), including Sherman v. Bell Atlantic Virginia, Inc. (Civil Action No. 2:99cv2132) and the instant civil action.
Plaintiff is not entitled to the relief she seeks through her specific citation to Fed.R.Civ.P. 60(b)(3). Plaintiffs former counsel is not an “adverse party” within the plain meaning of Rule 60(b)(3). Thus, his alleged shoi’tcomings as plaintiffs own attorney, described in paragraph one (1), do not support plaintiffs claim for relief under the provisions of the rule that she has cited. In short, defendant, the “adverse party” contemplated by Rule 60(b)(3), and not plaintiffs own attorney, must be the author of any fraud, misrepresentation, or misconduct for which the provisions at issue may provide a remedy.
The Court notes that the allegations contained in paragraph one (1) of plaintiffs motion relate almost entirely to her attorney’s conduct prior to January 9, 2002, the date on which the Court entered an Order allowing him to withdraw as plaintiffs counsel.
Further, the Court, applying Rule 60(b) more broadly to the facts alleged by plaintiff, finds nothing in plaintiffs Motion for Relief From Judgement or Order that suggests attorney misconduct sufficient to support a claim for relief pursuant to that rule. See In re Virginia Information Sys. Corp., 932 F.2d 338 (4th Cir. 1991) (citing Evans v. United Life & Accident Ins. Co., 871 F.2d 466, 472 (4th Cir. 1989)) (poor lawyering by counsel cannot properly ground Rule 60(b) motion); see also Wood v. Kling, 98 F.R.D. 319, 320 (E.D.Va. 1983) (attorney’s ignorance or carelessness does not support a claim for relief under Rule 60(b)).
In paragraph two (2), plaintiff fails to allege facts amounting to “fraud (whether heretofore denominated as intrinsic or extrinsic), misrepresentation, or other miscon
Plaintiff may not use a Rule 60 motion to re-litigate the merits of a matter previously decided by the Court. A motion for relief from a judgment or order “that is ‘nothing more than a request that the district court change its mind’ is not cognizable under Rule 60(b).” Bright v. NORSHIPCO, 187 F.R.D. 536, 539 (E.D.Va. 1998) (citing Moeller v. D’Arrigo, 163 F.R.D. 489, 494 (E.D.Va. 1995)). Thus, plaintiffs motion for relief pursuant to Fed.R.Civ.P. 60(b)(3) is DENIED.
Plaintiffs Motion for an Opportunity to be Heard (Document No. 53) and Memorandum in Support of Plaintiffs Motion for an Opportunity to be Heard (Document No. 54) filed on July 24, 2002, are before the Court. Plaintiff seeks to ground her Motion for an Opportunity to be Heard on her inability to obtain a lawyer to advise her. As it advised in its earlier Order, entered on July 1, 2002, the Court lacks authority to compel a lawyer to represent a plaintiff in a civil matter. However, the Court did provide the plaintiff with an opportunity to consult with a highly respected lawyer skilled in employment law who met with her on two occasions before declining to represent her on a pro bono basis. Also, it is clear to the Court that plaintiff has had ample time and numerous opportunities to consult with and retain a lawyer to represent her. In view of the foregoing, plaintiff has stated no basis from which the Court might conclude that the relief she seeks in her Motion for an Opportunity to Heard is available to her; and as a consequence, plaintiffs Motion for an Opportunity to be Heard is DENIED.
Similarly, plaintiffs Motion for Continuance (Document No. 57), filed on July 24, 2002, seeks a continuance to allow her to locate counsel to represent her, and to provide more time within which to conduct research and draft pleadings to be filed in this case as she is proceeding pro se. For the reasons expressed in the foregoing paragraph, this motion is also DENIED.
Plaintiffs Motion for Leave of Court (Document No. 55) and Memorandum in Support of Plaintiffs Motion for Leave of Court (Document No. 56) filed on July 24, 2002, seeks reconsideration of the Court’s Order granting summary judgment to the defendant. Plaintiff is not entitled to have the merits of defendant’s motion for summary judgment afforded additional consideration from the Court under the present procedural
Finally, the Court considers plaintiffs Motion (Document No. 40) seeking copies of the file without cost. First, the Court observes that the Court file in this matter has been made available to the plaintiff for review during normal business hours; and second, the Court notes that plaintiff has received copies of all pleadings filed by the defendant, as is evidenced by the certificates of mailing appended to each of them. See Fed.R.Civ.P. 5. Thus, plaintiffs motion seeking copies of the file without cost is DENIED.
IT IS SO ORDERED.
. Plaintiff has filed a Motion for Leave of Court (Document No. 55) and Memorandum in Support of Plaintiff’s Motion for Leave of Court (Document No. 56). While the Court is unable to discern the relief that plaintiff seeks from her motion, a close reading of her supporting memorandum indicates that, inter alia, she seeks leave to amend her Motion for Relief From Judgement or Order by filing an Affidavit confirming that the attached exhibits are true copies. See Affidavit (Document No. 58) filed by plaintiff on July 25, 2002. To the extent plaintiff seeks to have the Court consider her exhibits as "true copies,” plaintiff’s Motion for Leave of Court is GRANTED.
. Plaintiff also makes reference in her Motion for Relief From Judgement or Order to yet another civil action, styled Jason Storm v. Bell Atlantic-Virginia, Inc. (Civil Action No. 2:99cv2100). However, plaintiff was not a party to this case, which was voluntarily dismissed with prejudice on joint motion of the parties on August 7, 2000. This Court finds no basis to consider this civil action in connection with plaintiffs claim to Rule 60(b)(3) relief herein.
. Plaintiff fired her attorney in late 2001. See Motion and Brief of Plaintiff's Counsel to Stay Proceedings (Document No. 11), filed on December 31, 2001.
. This is especially so where plaintiffs claim, as the Court construes it, is that "[n]ot all pertinent information related to discrimination, harassment, and retaliation was introduced and counsel for the defendant was aware of this information.” Motion for Relief From Judgement or Order, 112.
. The Court does not read plaintiff's Motion for an Opportunity to be Heard and Memorandum in Support of Plaintiff's Motion for an Opportunity to be Heard to seek an opportunity to present oral argument to the Court. However, the Court notes that it may dispense with oral argument in appropriate cases. See E.D. Va. R. 7(1). The Court finds that the circumstances of this case, including in particular its procedural history, support its decision to dispense with oral argument herein.
. See footnote (1), supra.
Reference
- Full Case Name
- Diane S. SHERMAN v. VERIZON VIRGINIA INC.
- Cited By
- 3 cases
- Status
- Published