JEFRI AALMUHAMMED, Plaintiff v. LEWIS KESTEN; JACK BAXTER; X-CEPTIONAL PRODUCTIONS, INC.; BROTHER MINISTER, INC.; ILLUMINATI ENTERTAINMENT GROUP, INC.; WHY PRODUCTIONS, INC.; 3RD MILLENNIUM ENTERTAINMENT GROUP, INC.; PIERRE RICHARD MULLER; CINEMA ARTS ENTERTAINMENT, INC.; and DOES 2-100, inclusive, Defendants.

98 CIV. 171 (DLC)United States District Court, S.D. New York.
January 10, 2003

Jefri Aalmuhammed, Plaintiff Pro Se, East Greenwich, RI

Jack Baxter, Defendant Pro Se, New York, N.Y.

Lewis Kesten, Defendant Pro Se, East Hills, N.Y.

OPINION AND ORDER
DENISE COTE, United States District Judge

On July 29, 2002, Magistrate Judge Katz issued a report (“Report”) recommending denial of pro se plaintiff Jefri Aalmuhammed’s (“Aalmuhammed”) motions for reconsideration or reversal of this Court’s (1) Order of February 22, 2000 dismissing the action against defendant Pierre Richard Muller (“Muller”) for failure to provide proof of service, (2) Order of June 20, 2000 granting summary judgment in favor of defendant Brother Minister, Inc. (“BMI”), and (3) Order of July 10, 2000 dismissing this action with prejudice for failure to prosecute. The plaintiff principally argues that he did serve Muller and that he should not be penalized for the failings of his attorney, who was representing him at the time each of these three orders was entered. He seeks to reopen discovery and to change the venue for this litigation, although he also represents that he is prepared to proceed to trial without any further discovery.

Defendants Jack Baxter (“Baxter”) and Lewis Kesten (“Kesten”), who are also proceeding pro se, oppose the plaintiff’s motions on the grounds that they are untimely, that they are premised on the failings of plaintiff’s own counsel, and that it would be unfair to the defendants to reopen this action after this length of time. The plaintiff has objected to the Report. For the reasons that follow, the Report is adopted.[1]

Background

This action was filed on January 9, 1998. Plaintiff asserted principally that he was denied proper credit and compensation for his work as a co-author, co-director and co-producer of the film Brother Minister: The Assassination of Malcolm X (“Film”), which the plaintiff asserts opened to critical acclaim in January 1995. The following facts are particularly pertinent to the issues raised by the plaintiff’s objections to the Report.

1998: Pleadings; Difficulties Communicating with Plaintiff; Service onMuller

The complaint named as defendants Kesten, Baxter, companies associated with each of them, Muller, and others. The civil cover sheet listed the plaintiff’s address as “Palm Beach County, Fl.” and added as a “temporary address”, an address in Indianapolis, Indiana. The plaintiff filed an amended complaint on May 1, 1998. As of May 1, no affidavit of service had been filed by the plaintiff and no defendant had answered or moved with respect to the first pleading. The amended complaint named the same defendants.

In a letter received on May 8, 1998, the plaintiff requested an extension of time to serve certain defendants, including Muller, who was living in Paris, France and Switzerland. A May 19 Order extended the time to serve all defendants until September 18, 1998, and explained that the case would be dismissed against unserved defendants unless there was a timely request for additional time to serve them and a showing of good cause in support of the request. On May 19, 1998, the plaintiff filed an affidavit of service for defendant Cinema Arts Entertainment.

On May 21, 1998, defendant Kesten requested that the Court grant a thirty day extension of the time to answer since he had been unsuccessful in his efforts to contact the plaintiff to obtain consent to the request. He noted that there is “no Jefri Aalmuhammed to be found at the addresses contained in the Summonses.” The Indianapolis, Indiana address that plaintiff had provided to the Clerk of Court was the same address recited for the plaintiff in Kesten’s letter. Kesten’s request was granted in a May 22 Order. In a letter of June 15, Kesten continued to complain of difficulty in communicating with the plaintiff.

An Order of June 17, 1998 reflected that a letter sent by the Court to the plaintiff had been returned with the notation “return to sender” and that Kesten had reported that he had been unable to contact the plaintiff. The plaintiff was ordered to provide a mailing address by June 30 or the case would be dismissed without prejudice. On July 7, the case was dismissed without prejudice for failure to provide a mailing address.

In a July 16, 1998 letter the plaintiff requested reinstatement of his case. He explained that he is a resident of Florida and “domiciled” in Palm Beach County, but that his mailing address is the Indiana address. He attributes his failure to receive mail from the defendants to their decision to send registered mail, which requires a signature. He explained that his travels prevented him from responding earlier to the Order. He learned of the Order when visiting the Court’s Pro Se Office on July 7. He offered various explanations for why one of the Court’s Orders mailed to the plaintiff was returned as undeliverable. The case was reinstated by Order of July 21.

In a letter dated September 24, 1995 [sic] and received September 24, 1998, the plaintiff indicated that he had had difficulty serving Muller. He asked to be given until January or March 1999 to effect service on Muller. An Order of September 24, extended the plaintiff’s time to serve Muller to January 15, 1999.

An Order of October 13, 1998 cancelled an initial pretrial conference in the case due to the difficulty of accommodating the schedules of all of the parties in the action, including the plaintiff. The conference had originally been scheduled for October 9, and rescheduled to October 16.

The plaintiff informed this Court’s Deputy Clerk in early October that he was traveling and would not be able to retrieve his mail from Indiana. He was advised that the Court needed an address where we could be certain that he would receive mail. He offered to provide a New York address, but in a later conversation indicated that he did not have an address in New York that he could use. In mid-October, the plaintiff provided the Deputy Clerk with a post office box address in Rhode Island. In correspondence with the Court in November 1998, however, the plaintiff continued to rely on the Indiana address.

The October 13 Order also required the plaintiff to file proof of service with the Court by October 28, for all of the defendants who had been served, and set December 16 as the date for those defendants to answer or move. On October 28, 1998, the plaintiff advised the Court that he had already provided proof of service for all defendants served by October 28. His October 28 submission does not discuss service on defendant Muller.

The plaintiff requested the Clerk of Court on November 6, to serve the summons and complaint on defendant Muller pursuant to Rule 4(f)(2)(C)(ii) Fed.R.Civ.Pro., by mailing those documents to Muller in Paris, France by certified mail. The Clerk of Court mailed the summons and complaint to France by registered mail on November 13, 1998. The receipt was returned to the Clerk of Court on or about November 20, 1998, signed by “RM”

After reciting defendant Kesten’s continuing complaints about his difficulty in communicating with the plaintiff and the requirement in Local Rule 26.1 that a party provide a post office address and residence, an order of December 3, 1998, required the plaintiff to provide the address of his residence. In a December 18, 1998 conversation with the Court’s Deputy Clerk the plaintiff explained that he had been traveling for a month and had just learned of the Order to provide a residence and mailing address to the defendants. He indicated that he would do so by Monday, and that it would be the Indiana address he had listed initially in this case. In a December 21 letter, the plaintiff responded in writing to the December 3 Order. The plaintiff indicated that he had residences in several States, but listed a Boca Raton, Florida address as the address that the defendants and the Court should use as his residence address. He noted, however, that “knowledge of my Palm Beach County, Florida, and other residences will not provide the defendants or the Court with additional avenues of `communication’ with me — as I do not receive correspondence or telephone calls at any of my residences except by special arrangement (excluding the aforementioned Indiana address, which might be considered both a mailing and residential address for the purposes of the Court’s local rule.)” (Emphasis in original.) He noted that he checks his Rhode Island address for correspondence every two to three weeks and the Indiana address about once a month. He added that the Rhode Island address was temporary and valid only until March 15, 1999, at the latest. He noted that he had been unaware of the December 3 Order until returning from a two month trip.

1999: Entry of Attorney to Represent Plaintiff; Setting of Schedule forLitigation

In a January 11, 1999 letter, the plaintiff provided the Court and defendants with a new mailing address in Rhode Island which he “established principally to facilitate communications relevant to this case.” The plaintiff indicated that he was interviewing attorneys to represent him in the litigation and would “deactivate” the Rhode Island mailing address if he did retain counsel.

On March 11, 1999, Marc Lawrence (“Lawrence”) filed a notice of appearance on behalf of the plaintiff. Lawrence was given additional time to respond to pending motions to dismiss and on July 20, 1999, the motions to dismiss brought by the defendants identified with Kesten and Baxter were denied. These groups of defendants did not include Muller. Having denied the motions to dismiss, and unaware of the November 13, 1998 mailing to Muller by the Clerk’s Office, a July 20 Order required the plaintiff to submit an affidavit of service regarding service on the two remaining defendants, Muller and Pat Vitucci.

On September 10, 1999, a conference was held. Lawrence attended on behalf of the plaintiff. A schedule for discovery, motion practice, and service of pretrial statements was set.[2] The parties were advised that the schedule could be adjusted if application was made in writing and in advance of the date at issue. The parties were also advised to contact their adversaries to learn whether there was consent to any such application. A Scheduling Order of September 15 recited the deadlines discussed at the conference, which included the completion of discovery by February 25, 2000, and the filing of a pretrial statement by March 17, 2000 in the event no summary judgment was filed by that date.

2000: Three Orders of Dismissal

An Order of February 18, 2000 dismissed the action as to Muller and Pat Vitucci on the ground that no affidavit of service had been submitted by the plaintiff in response to the July 20, 1999 Order. No motion for reconsideration of the dismissal was made, although plaintiff’s counsel continued to communicate with the Court on various litigation issues for several months thereafter.

On February 22, 2000, this Court’s Deputy Clerk advised the parties in writing that the case had been placed on the Court’s April 3, 2000 trial ready calendar. An Order of that day required Lawrence to contact the chambers of Magistrate Judge Katz prior to March 3 to arrange a settlement conference in the case and gave further instruction regarding trial procedures.

On April 18, 2000, Lawrence wrote to request that discovery be reopened. An April 21 Order denied the request, noting that discovery had closed on February 25, and that plaintiff’s pretrial statement, due on March 17 in the event there was no summary judgment motion, had not been filed. The Order observed that a summary judgment motion had been filed by defendants but served on the plaintiff rather than Lawrence. The Order extended plaintiff’s time to oppose the pending summary judgment motion to May 5 and set June 23 as the date for filing plaintiff’s pretrial statement. The Order advised the plaintiff that a failure in the future to comply with Court orders or to request an extension of time on a showing of good cause and prior to the date the submission was due, could result in a dismissal for failure to prosecute. On June 8, Lawrence attended a settlement conference before Magistrate Judge Katz.

An Opinion and Order of June 20, 2000 dismissed the claims against BMI on the ground that plaintiff had failed to serve BMI and, alternatively, granted summary judgment to BMI on the ground that it was created after the events in issue and could have no liability to the plaintiff. In it motion, BMI pointed out that the plaintiff had not responded to its discovery requests that had been intended to establish BMI’s lack of connection to the events at issue in the lawsuit. Lawrence had submitted papers dated May 5, in opposition to the motion. The June 20 Opinion included a reference to the plaintiff’s pretrial statement being due on June 23.

On July 10, 2000 the entire action was dismissed for failure to prosecute after the plaintiff failed to file the pretrial statement due on June 23, 2000, failed to request an extension of time, and failed to return the three telephone calls placed by Chambers’ staff to inquire about the failures. There was no appeal.

2001: Motion to Reinstate the Litigation

Almost one year later, on June 20, 2001, plaintiff filed the instan pro se motions seeking in essence to reopen the litigation.

2002: Lawrence’s Suspension

On October 24, 2002, Lawrence was suspended from the practice of law in New York State.

Discussion

“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). Rule 60(b), Fed.R.Civ.P., “should be broadly construed to do substantial justice, yet final judgments should not be lightly reopened.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted). A motion based on clauses (1), (2), and (3) of Rule 60(b) must be brought within one year of the judgment or order which the movant seeks to vacate. See
Fed.R.Civ.P. 60(b); Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2d Cir. 1997) Failure to comply with a filing deadline does not generally constitute excusable neglect under Rule 60(b)(1) Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997). Relief under Rule 60(b)(6) is not available if a reason offered for relief “can be considered in one of the more specific clauses of Rule 60(b).” Teamsters, 247 F.3d at 391-92. A motion based on clause (6) must be brought “within a reasonable time”; relief is only appropriate under clause (6) “in cases presenting extraordinary circumstances.” Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (citation omitted).

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. Link v. Wabash R.R. Co., 370 U.S. 626, 633-34
(1962) (complaint dismissed for failure to prosecute); SEC v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998). Gross negligence of an attorney is not a ground for relief under Rule 60(b)(6). Nemaizer, 793 F.2d at 63 (citing cases). In rare instances, relief under Rule 60(b) may be appropriate based upon the conduct of a party’s attorney. For instance, where defendants were facing a tax judgment of $271,000 after their attorney failed to respond to the government’s motion for summary judgment, where they had made a “strong” showing of meritorious defense, where their attorney had constructively disappeared due to a psychological disorder, and where they had been diligent, the court in United States v. Cirami, 563 F.2d 26, 35 (2d Cir. 1977), found extraordinary circumstances justifying Rule 60(b)(6) relief. Even where an attorney has inexcusably and completely abandoned his responsibilities to his client, however, a party must still demonstrate his own diligent efforts to induce the attorney “to fulfill his duty.” Dominguez v. United States, 583 F.2d 615, 618 (2d Cir. 1978) (per curiam)

1. February 18, 2000 Order: Dismissal of Defendant Muller

The Report recommended that the motion to reinstate the litigation as to defendant Muller be denied. It opined that the plaintiff was required to move for reconsideration within ten days of the docketing of the Court’s February 18, 2000 Order dismissing the action as to Muller. It concluded that, to the extent that the plaintiff was relying on the argument that his attorney’s negligence should not be held against him, his motion was time-barred since he was required to bring that application within one year after the entry of the Order, or by February 22, 2001.

The plaintiff’s objection to this analysis relies almost exclusively on his contention that he had in fact effected service on Muller through the certified mailing executed at his request by the Clerk of Court on November 13, 1998. The plaintiff believes that the Court acted in error in dismissing the complaint for lack of service and that such an error should be corrected.

When it dismissed the complaint as to Muller, the Court was not aware of the mailing by the Clerk’s Office to Muller, although it is reflected on the docket sheet.[3] When a court errs, the mechanism for correcting that error is set out in the rules and procedures described in the Report. As the Report correctly explains, the plaintiff’s present application is barred due to his failure to make any timely application.

2. June 20, 2000 Order: Dismissal Defendant BMI

The Report recommended that the application to reinstate the litigation as to defendant BMI be denied. It concluded that the motion, brought exactly one year after entry of the Order of dismissal was not brought within a reasonable time, and that in any event, the plaintiff was bound by the actions of his attorney and could not avoid the dismissal by arguing that his attorney’s opposition to the motion to dismiss should have been more effective. Aalmuhammed objects to the Report’s recommendation on the ground that the suspension of Lawrence from the practice of law in 2002 constitutes extraordinary circumstances and should exempt him from the general rule that he is bound by the actions of his attorney.

The Report correctly concludes that Aalmuhammed is bound by the conduct of his attorney and that his objection was not brought within a reasonable time. These conclusions are not affected by the suspension of his attorney. Aalmuhammed has not shown the existence of extraordinary circumstances with respect to the June 20 Order because Aalmuhammed’s attorney was still participating in the litigation in connection with BMI’s motion. Lawrence submitted an opposition to this motion. While relief under Rule 60(b) may be warranted when an attorney completely abandons a case, it is certainly not appropriate, as the Report notes, where a party simply objects to the quality of the attorney’s workproduct. Such a finding would completely eviscerate the general principle that a party may not evade the consequences of the conduct of his freely chosen agent.

3. July 10, 2000 Order: Dismissal of the Action

The Report recommended that the motion to reinstate the action be denied. The Report based its recommendation on its conclusions that the plaintiff had not acted with sufficient diligence in the course of the litigation and in bringing the motion, that the defendants would be prejudiced if the litigation were reopened, and that the plaintiff would not be able to prevail on his claims. In connection with the latter finding, the Report noted that the plaintiff asserted that he would require significant discovery to prove his claims, but that discovery had been closed months before the July 10 Order was issued.

In his objections the plaintiff asserts that he was diligent, that he has only changed his mailing address twice (identifying two Rhode Island post office box numbers), that the defendants’ asserted prejudice should be ignored since they are fraudulently attempting to capitalize on the Film, and that he can prevail at trial even without discovery although his case would be severely crippled. The plaintiff emphasizes that the suspension of his attorney from the practice of law is so extraordinary that his attorney’s failings should not result in the dismissal of the litigation.

The plaintiff has not been sufficiently diligent in his pursuit of this litigation to warrant the extraordinary relief that he seeks. The Report correctly described the difficulties that this Court, the Magistrate Judge and the defendants have encountered throughout this litigation in communicating with the plaintiff before and after the period during which he was represented by Lawrence. Some of those difficulties are evident from the recitation of the history of this litigation at the beginning of this Opinion.

The Report also found that the plaintiff had not been sufficiently diligent in monitoring the litigation when he was represented by Lawrence. According to the plaintiff, he moved to rural Virginia in December 1999 to provide transportation for the wife of a relative who was in the hospital, and would call Lawrence every two weeks or so. The plaintiff indicates that Lawrence told the plaintiff that he would send the plaintiff copies of all of his court filings and was making a motion in October 1999 for entry of a default judgment against certain defendants. Lawrence never sent any documents to the plaintiff after August 1999. The plaintiff never received copies of any motion papers asking for entry of a default. In most of his telephone calls the plaintiff was unable to speak directly to Lawrence, and spoke instead with his associate or a secretary, and after May or June 2000 never again spoke to Lawrence. When the secretary reported that Lawrence had said “nothing” in response to the questions the plaintiff had left for Lawrence, the plaintiff assumed that this meant that nothing was happening on the case. The plaintiff traveled to New York in January or February 2001, and learned for the first time that no motion for entry of a default had ever been filed, that proof of service on Muller had never been provided by his attorney to the Court, that the case had been dismissed against Muller and BMI, and that the entire action had been dismissed the previous July for failure to prosecute. The Report was correct in finding that Aalmuhammed was not sufficiently diligent in monitoring his attorney and the prosecution of his case during late 1999 and 2000 to invoke the extraordinary relief he seeks under Rule 60(b)(6).

The Report also found that the plaintiff had not been sufficiently diligent in bringing this motion after learning in early 2001 of the dismissal of the action and the entry of the other Orders at issue in this motion. The Report noted that the plaintiff took an additional five months to communicate with the Court and file the instant motion and four months to submit his reply to the defendants’ two page opposition to his motion.

The Report did not find the plaintiff’s explanation for the five month delay to be reasonable. The plaintiff contended that he needed to travel to eight different states to collect exhibits to support his motion. As described in the Report, the exhibits in support of the motion were primarily the Orders entered in this case and newspaper articles of little relevance to the motion. In his objections, the plaintiff further contends that the travel was necessary to obtain documents relating to the Film, and that it took a long time to compose the 200 page motion. The length of the motion and the nature of the exhibits do not justify waiting five months to file this application upon learning that the case had been dismissed six months earlier. The plaintiff had made many previous applications to the Court as a pro se litigant. He has not explained why he did not promptly move to reopen the litigation and, if he felt it necessary to make a 200 page submission accompanied by documents related to the Film, request additional time to prepare such a submission and gather such documents. The Report was correct in finding that Aalmuhammed was not sufficiently diligent in bringing this motion to invoke the extraordinary relief he seeks under Rule 60(b)(6).

Conclusion

For the reasons stated above, the Report is adopted. Plaintiff’s motion for reconsideration and reversal is denied.

SO ORDERED:

[1] In a letter dated September 17, 2002, Aalmuhammed argues that this Court had a conflict of interest because of its investment in a mutual fund that holds securities of AOL Time Warner. Aalmuhammed explains that he has pending litigation with Warner Brothers, a unit of AOL Time Warner. On its face, the letter raises no cognizable issue of financial conflict, since it refers to financial investments by this judge in a mutual fund in which this judge makes no investment decisions. Code of Conduct, United States Judges, Canon 3(C)(3)(c)(i).
[2] actions where there are parties proceeding prose the Court does not require the joint submission of a Pretrial Order, but requires instead that the parties separately submit pretrial statements containing the information listed in a scheduling order.
[3] It appears that the service on defendant Muller in France was proper under the Hague Convention. See 1 B. Ristau, International Judicial Assistance (Civil and Commercial) § 4-3-5(4) at 217 (1984).