Keane v. HSBC Bank USA, N.A.

2017 | Cited 0 times | First Circuit | October 31, 2017

United States Court of Appeals For the First Circuit

No. 16-1045


Plaintiff, Appellant,



Defendants, Appellees.


[Hon. William G. Young, U.S. District Judge]


Kayatta, Lipez, and Barron, Circuit Judges.

Jamie Ranney, Jamie Ranney, P.C., on brief for appellant. Elizabeth T. Timkovich and Phoebe Norton Coddington, Winston & Strawn, LLP, on brief for appellees.

October 31, 2017

KAYATTA, Circuit Judge. John Keane appeals from the

denial of his motion to vacate an order dismissing his lawsuit

against HSBC, Nationstar Mortgage, and Mortgage Electronic

Registration Systems. We reverse.


In December 2014, Keane sued defendants in state court

in Massachusetts, alleging a variety of state law violations in

connection with a foreclosure action against a property he owned

on Nantucket. Defendants removed the action to federal court in

the District of Massachusetts and moved to dismiss the case on

April 23, 2015. The district court entered an order setting a

motion hearing for June 3. At Keane's request, the district court

extended Keane's response deadline to May 26, and moved the hearing

date to June 17. On May 26, Keane again requested an extension;

the district court further extended his response deadline to June

8, and reset the motion hearing to July 22, but noted in the order

that extended the deadline that "THERE WILL BE NO FURTHER

EXTENSIONS ALLOWED." Keane timely filed his response in opposition

to the motion on June 8. His counsel, however, failed to appear

at the July 22 motion hearing. The district court, sua sponte,

dismissed Keane's suit for failure to prosecute.

One day after the district court entered its order

dismissing the case, Keane's counsel filed a motion for relief

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from that order, citing Federal Rule of Civil Procedure 60(b) and

claiming "mistake, inadvertence, carelessness or excusable

neglect." Keane's counsel explained that his failure to appear at

the scheduled hearing was not intentional, but was instead the

result of his neglect in failing to calendar the July 22 hearing

date. A solo practitioner with a heavy caseload, he attributed

his neglect to the fact that his only two office assistants had

both left on maternity leave in June. The district court denied

the motion without prejudice to its being refiled along with

further supporting materials. Keane refiled the motion with an

affidavit from his attorney confirming the statements in the

original motion, but the district court denied it without any

further explanation.1 Keane appealed this denial, and only this

denial; his notice of appeal does not mention the initial dismissal

of the case for failure to prosecute.


We begin with a preliminary jurisdictional issue. In

theory (and as a matter of prudence) Keane might have appealed

from both the order dismissing the case for failure to prosecute

1 It appears that the renewed motion was actually filed one day after the 30-day deadline set by the district court, because the month in which that deadline was set was a month with 31 days. Neither party has made anything of this, nor did the district court cite this one day delay as a reason for denying the motion.

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and the order denying his Rule 60(b) motion for relief from that

order. Instead, in his notice of appeal he designated only the

latter, leaving us with jurisdiction only to review the latter.

See Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33 , 37 (1st

Cir. 2013). In this context, though, the analyses of both the

underlying dismissal and the Rule 60(b) motion merge. When a

district court dismisses a case for failure to prosecute due to

non-attendance at a hearing, it often lacks a key piece of

information: the reason why the party or attorney failed to attend.

This information only becomes available when the dismissed party

requests relief from the dismissal under Rule 60(b). Thus, the

Rule 60(b) motion provides the first occasion upon which a party

may be heard and a fully informed district court can decide the

appropriate course of action. And while a dismissal without notice

and the opportunity to be heard would normally trigger due process

concerns, the ability of a party or attorney to present an excuse

for the absence on a Rule 60(b) motion solves this problem. See

Link v. Wabash R.R. Co., 370 U.S. 626 , 632 (1962)("[T]he

availability of a corrective remedy such as is provided by Federal

Rule of Civil Procedure 60(b) . . . renders the lack of prior

notice of less consequence."). In evaluating the district court's

denial of Keane's Rule 60(b) motion, we are essentially asking

whether, given the information placed before it, the dismissal

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remained justified as an act of the district court's discretion,

or whether the district court was required to grant Keane's

requested relief and vacate the dismissal. Thus, Keane's appeal

of the refusal to set aside, under Rule 60(b), the dismissal

entered without notice permits us to consider the appropriateness

of that dismissal, even if listing both rulings in the notice of

appeal would have been preferable.

The grant or denial of a motion under Rule 60(b) is

committed to the sound discretion of the district court and we

review its decision for abuse of discretion. Dávila-Álvarez v.

Escuela de Medicina Universidad Central del Caribe, 257 F.3d 58 ,

63 (1st Cir. 2001); see also Santos-Santos v. Torres-Centeno, 842

F.3d 163 , 169 (1st Cir. 2016) ("The trial judge has wide discretion

in this arena, and we will not meddle unless we are persuaded that

some exceptional justification exists." (internal quotation marks

omitted)). In general, our precedent dictates that Rule 60(b)

motions should be granted sparingly, and any grant or denial of

the same should be viewed with great deference on appeal. See,

e.g., Santos-Santos, 842 F.3d at 169 ("Demonstrating excusable

neglect is a demanding standard." (internal quotation marks


That being said, the law also manifests a strong

preference that cases be resolved on their merits. See Ortiz-

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Anglada v. Ortiz-Perez, 183 F.3d 65 , 66 (1st Cir. 1999)

("[D]isposition on the merits is favored . . . ."). We have

repeatedly made clear that "dismissal with prejudice for want of

prosecution is a unique and awesome [sanction]" to which courts

should not resort lightly. Pomales v. Celulares Telefónica, Inc.,

342 F.3d 44 , 48 (1st Cir. 2003) (collecting cases). We have said

that dismissal is appropriate "in the face of extremely protracted

inaction (measured in years), disobedience of court orders,

ignorance of warnings, contumacious conduct, or some other

aggravating circumstance." Id. (internal quotation marks

omitted). Such language implies that dismissal for failure to

prosecute is usually not appropriate for garden-variety, isolated

instances of attorney negligence. Given the Supreme Court's

explicit directive that Rule 60(b) may be used as a litigant's

opportunity to be heard on the appropriateness of a dismissal for

failure to prosecute, see Link, 370 U.S. at 632, a district court

facing a Rule 60(b) motion offering an explanation for failure to

prosecute should give a party's explanation serious consideration

and ensure that, on a full factual record, dismissal remains the

appropriate sanction. See Hernandez v. Herndandez-Colon, No. 94-

2169, 1995 WL 146236 , at *2 (1st Cir. Apr. 5, 1995) (unpublished

opinion) (reversing the denial of a Rule 60(b) motion for relief

from a dismissal for failure to prosecute where additional

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information provided by the plaintiffs in their Rule 60(b) motion

rendered dismissal inappropriate).

Applying the above principles to the matter at hand, we

conclude that the district court abused its discretion in denying

Keane's Rule 60(b) motion. There is no suggestion at all that

Keane's counsel's failure to appear was intentional. Nor does the

record point to any prior neglect by counsel or a lack of regard

for the importance of adhering to court-ordered deadlines.

Defendants cite the two instances when Keane's counsel sought to

reschedule hearings. Those instances, though, reflect no lack of

regard for the court's deadlines; to the contrary, counsel paid

attention to the hearing dates and followed the proper rules for

securing changes to those dates. It is possible that repeated

last-minute requests for extensions could, at a certain point,

become abusive, but wherever that point is, Keane's two requests

did not reach it.

The district court also gave no notice that failure to

appear would result in dismissal with prejudice (rather than, for

example, a loss of the ability to present oral argument). And the

unexplained refusal to vacate the dismissal meant, as a practical

matter, that Keane's claims were left without a single merits

adjudication. While particularly egregious instances of a party

neglecting to prosecute its case may lead to this result, the

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strong preference for adjudicating disputes on the merits counsels

against sua sponte dismissals where there has never been any

consideration of the merits.

Finally, defendants claim no serious prejudice beyond

the costs of having counsel travel to and from the hearing, a harm

that could have been remedied by a monetary sanction.

Alternatively, and perhaps preferably, the district court might

have proceeded with the hearing as scheduled. In that event,

defendants would have ended up suffering no harm at all, while the

harm to Keane (having to rely on his brief alone) would have fit

the fault without overshooting the mark.

It is true that we have said that an attorney's failure

to meet court deadlines due to "routine carelessness" does not

generally constitute the excusable neglect that would merit relief

under Rule 60(b). See Negrón v. Celebrity Cruises, Inc., 316 F.3d

60 , 62 (1st Cir. 2003); see also Santos-Santos, 842 F.3d at 169

(exceptional justification necessary for Rule 60(b) relief "must

be something more than an attorney's failure to monitor the court's

electronic docket"); Vargas v. Gonzalez, 975 F.2d 916 , 918 (1st

Cir. 1992) (an attorney's failure to attend a status conference

rescheduled at that attorney's request was not excusable neglect

justifying a Rule 60(b) vacatur of the district court's order

dismissing the case). But these cases dealt either with repeated

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offenses over the course of three months, see Vargas, 975 F.2d at

916, or failures to file objections to the reports of magistrate

judges within a time specified by court rules, see Negrón, 316

F.3d at 61; Santos-Santos, 842 F.3d at 166. Reports by magistrate

judges often include an express warning of what will happen if no

timely objection is filed. See Negrón, 316 F.3d at 61 (magistrate

judge's order warned that failure to file specific objections

within ten days would waive appellate review); see also Santos-

Santos v. Puerto Rico Police Dep't, 63 F. Supp. 3d 181 , 184 (D.P.R.

2014) ("Absent objection, a district court has a right to assume

that the affected party agrees with the magistrate judge's

recommendation." (alterations and internal quotation marks

omitted)). In such cases, moreover, dismissal results only if the

magistrate judge first concludes that the dismissed claims fail on

the merits. In short, negligence in that context forfeits the

right to seek review of a merits adjudication. It does not, as

here, prevent any merits adjudication whatsoever.

It is also undoubtedly true that "[m]ost attorneys are

busy most of the time and they must organize their work so as to

be able to meet the time requirements of matters they are handling

or suffer the consequences." Stonkus v. City of Brockton Sch.

Dept., 322 F.3d 97 , 101 (1st Cir. 2003). But this assumes that

these consequences will be reasonably proportionate to the offense

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and thus foreseeable to counsel. As we have said, "the excusable

neglect inquiry involves a significant equitable component and

must give due regard to the totality of the relevant circumstances

surrounding the [party's] lapse." Dimmitt v. Ockenfels, 407 F.3d

21 , 24 (1st Cir. 2005) (internal quotation marks omitted). In

sum, Keane's counsel's behavior, though neglectful, was not

intentional, egregious, or repetitive, and a sanction short of

dismissal would have ensured that no harm was caused to Defendants

or to the court's perfectly appropriate desire to move the

litigation forward. Faced with an innocent and undisputed reason

for counsel's absence, the district court should have concluded

that while some sanction might have been appropriate, dismissal

with prejudice was too harsh given the circumstances.


For the foregoing reasons, the district court's denial

of Keane's motion to vacate the prior order dismissing his case is

reversed, the order dismissing the case is vacated, and the case

is remanded to the district court for further proceedings

consistent with this opinion. Each party shall bear its own costs.

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