Monday, December 07, 2009

Lemoge v. United States (9th Cir. - Dec. 7, 2009)

I'm not an invariable hard-a**. But I wonder if the Ninth Circuit isn't being a little soft here.

I agree with everything the panel says in Section A. Judge Burns (down here in San Diego) should clearly have discussed all four factors -- not just three of them -- in deciding whether to grant the plaintiff's Rule 60(b) motion for relief from dismissal. That seems right. The factors are there for a reason. You gotta apply the right law, and to say why you held the way you did.

So if the opinion ended there, I'm definitely with 'em. But Judge Gould goes on in Section B to say that, as a matter of law, the failure to grant relief here would be an abuse of discretion.

Really?! The Lemoges, represented by counsel, filed suit against the United States. (1) They served the wrong person. (2) The U.S. expressly told them, in writing, that they served the wrong party, and also told 'em who the right person to serve (the U.S. Attorney) was. (3) Even after knowing all this, counsel for the Lemoges apparently still didn't even try to serve the right party. (4) The district court issued an OSC re: dismissal, and plaintiffs still didn't serve the right person, and didn't even respond to the OSC.

Counsel's explanation for his apparent total abandonment of his law practice (he had some leg surgeries) didn't really work for me. And, unlike the Ninth Circuit, I'm not sure that the U.S. -- which settled with Lemoge's worker's compensation insurer prior to the granting of the motion for relief (which was itself belatedly filed) -- didn't suffer some prejudice from the delay.

I think Judge Gould is correct that, in addition to the other Rule 60(b) factors, courts should also consider the effect on the plaintiff if the motion is denied. That seems reasonable. But I would just remind Judge Gould that the practical effect of this motion is not to protect the plaintiff, but rather plaintiff's lawyer. The plaintiff's likely going to get paid regardless of whether the motion is granted, either from the lawyer or the lawyer's malpractice carrier (or, potentially, the State Bar's Compensation Fund). Indeed, in some ways, relief is easier with a malpractice claim, even in the face of a case-within-a-case, since liability on the malpractice side is so clear.

So, really, we're asking whether a wrongdoing lawyer, who has very little explanation for the multiple -- fairly egregious -- errors should be granted relief. Sure, in no-asset-no-insurance cases, that may also have an effect on the plaintiff. But let's nonetheless be honest about what the practical effects are. And to hold that the lawyer is entitled as a matter of law to get relief here; well, that just doesn't seem all that persuasive to me.

And I say that even though I'm a bit of a softie on Rule 60 motions. Do I like defendants who avoid liability on total technicalities (particularly, as here, service)? Not really. But do I like the encouragement of malfeasance that directly results from excuse regimes that allow lawyers to avoid the consequences of their misconduct? Nope. Don't like that either.

Here, it seems to me that while a reasonable district court could indeed elect to grant relief, and I'd be on board for that. But it also seems that a reasonable district court could go the other way as well. For me, an appellate court sometimes needs to let a district court do even those things that we wouldn't ourselves choose. To me, this was one of those cases. So I'd have remanded to make sure the district court thought about everything it should have considered, and perhaps I might have even hinted as to what I'd personally have decided. But I'd have let the person who's closest to the matter -- the district judge -- decide.

So as to (A) I say yes. But (B) seems to me a stretch.