United States District Court, D. Maine
ROBERT L. COUSINS AND JUDY A. COUSINS, Plaintiffs
v.
KEITH HIGGINS, HEATH HIGGINS, TADD JEWETT, MATTHEW TETREAULT, MATTHEW LINDSLEY, COLTON SANBORN, SAMUEL CHISHOLM, TOWN OF TREMONT, AND TREMONT VOLUNTEER FIRE DEPARTMENT, Defendants
PROCEDURAL ORDER AND COLOCOTRONI MEMORANDUM
D.
Brock Hornby United States District Judge.
This is
a case where summary judgment in the defendants' favor is
on appeal to the First Circuit.[1] Now for the second time during
the appeal, the plaintiffs have moved for relief from
judgment in this court.[2] I follow the First Circuit's
direction as to how a district court should resolve such
motions during an appeal:
[W]hen an appeal is pending from a final judgment, parties
may file Rule 60(b) motions directly in the district court
without seeking prior leave from us. The district court is
directed to review any such motions expeditiously, within a
few days of their filing, and quickly deny those which appear
to be without merit, bearing in mind that any delay in ruling
could delay the pending appeal. If the district court is
inclined to grant the motion, it should issue a brief
memorandum so indicating. Armed with this, movant may then
request this court to remand the action so that the district
court can vacate judgment and proceed with the action
accordingly.
Commonwealth of Puerto Rico v. SS Zoe Colocotroni,
601 F.2d 39, 42 (1st Cir. 1979). Moreover:
If the district court is unable conscientiously to dispose of
the motion within a few days of its filing because it
requires further argument, briefing, or the like, it should
issue a brief memorandum to this effect. The memorandum
should indicate that the motion is non-frivolous and not
capable of being fairly decided solely on the basis of the
court's initial screening and that the court will require
a specified number of more days to complete its review and
issue an order. . . . This memorandum will enable us to act
intelligently on extension requests made in the appeal.
Id. at 42 n.3.
The
plaintiffs bring this motion under Fed.R.Civ.P. 60(b)(1),
claiming "mistake, inadvertence, surprise or excusable
neglect." They say that when they objected to the
defendants' motion for summary judgment on February 9,
2018 (ECFNo. 80):
[W]e inadvertently submitted a 13 page document in duplicate
instead of the correct 13 p. PLAINTIFFS' STATEMENT OF
MATERIAL FACT (documented from the record). Plaintiffs
mistakenly believed that the document had been filed
properly. Plaintiffs acted in good faith and had no
comprehension of what had been done.
Pis.' Mot. at 1 (ECF No. 99). They also say: "For
this error in submission, we apologize. The error was not
discovered by us until (November 4, 2018). There is simply
too much at stake to lose because of the difficulty in
ascertaining that proper filing was accomplished."
Id.
In the
defendants' response to the motion, they say that
"Plaintiffs' claimed mistake does not make
sense." Defs.' Opp'n to Pis.' Second Mot.
for Relief from J. at 1 (ECF No. 103). In fact, there does
not appear to be any 13-page document on the ECF docket,
duplicate or otherwise, on or around that February date.
The
plaintiffs are pro se parties and under this
Court's procedures, they email their documents to the
Clerk's Office ECF Inbox. Admin. Proc. Governing the
Filing and Service by Electronic Means, D. Me. L.R. App. IV
(b)(2); District of Maine, Information for Pro Se Parties,
Appendix G: ECF Registration Form for Pro Se Filers and
Instructions for Non-Prisoner, Pro Se Litigants Registered
with CM/ECF, https://www.med.uscourts.gov/pdf/PRO
SE INFORMATION HANDOUT.pdf. It is then incumbent
upon the case managers to docket what they have emailed. I am
attempting to reconstruct, with the assistance of the
Court's IT staff, what the plaintiffs actually emailed in
February and what the case managers docketed. I need to do
that before I can determine whether there is substance to the
plaintiffs' motion and, if so, what the consequence
should be.
In
accordance with the Colocotroni instruction, 601
F.2d at 42 n.3, I now state that until I can clarify the ECF
filing and docketing record, the plaintiffs' motion is
not capable of being fairly decided solely on the basis of
the Court's initial screening. The plaintiffs' reply
to the defendant's response to their motion is due
December 14, 2018. This Court will require until December 21,
2018, to review that response, finish its clarification of
the ECF filing and docketing record, and issue an order.
The
Clerk's Office shall immediately provide this memorandum
to the Court of Appeals.
So
...