Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:03-cv-02481-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.: 03-cv-02481-LTB-CBS SUSAN VON FEIST, Plaintiff, v. CELESTICA CORPORATION, Defendant.

MOTION FOR RELIEF FROM ENTRY OF SUMMARY JUDGMENT

Plaintiff, SUSAN VON FEIST, through her undersigned counsel, Elizabeth A. Starrs and Justin G. Blankenship of STARRS MIHM & CASCHETTE LLP, moves for relief from the Court's Order granting Defendant's motion for summary judgment as follows: Certification Pursuant to D.C.COLO.LCivR7.1A: Plaintiff's attorney has conferred with opposing counsel who objects to this motion. I. INTRODUCTION

Plaintiff seeks relief from the Court's order granting Defendant's motion for summary judgment on the basis that Plaintiff's failure to respond constitutes excusable neglect in light of her lawyer's actions, or, in the alternative, under the "catch-all" provision of Fed. R. Civ. P. 60(b)(6). At some point in the fall of 2005, Cecelia Serna, Ms. von Feist's lawyer, ceased working on this case and effectively abandoned her client without notice. Defendant's motion for summary judgment was granted without a responsive pleading filed on Ms. von Feist's

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behalf. Plaintiff was never aware that the motion for summary judgment had been filed, or that her lawyer was no longer representing her interests. Plaintiff now seeks relief from the Court's summary judgment order, asking the Court to reinstate one of her wrongful discharge claims. II. FACTS

On February 1, 2002, after showing up to her manufacturing job at Celestica around 3:00 p.m., Ms. von Feist was exposed to naptha fumes from a cement sealer being used for cleaning within the facility. By approximately 5:45 p.m., Ms. von Feist and her co-workers noticed that the fumes had been affecting their work performance and reported their discomfort to management. Ex. 1, Von Feist Depo., 82:6­83:18. Management informed the employees that they could leave the work area and step outside, then evacuated them to the cafeteria shortly thereafter. Id. at 84:12­85:8. On her way back to the cafeteria after re-entering the building, Ms. von Feist lost consciousness and was rushed to the hospital along with two others. Id. at 85:16­87:20; 89:7­20. Despite being discharged from the hospital that night, Ms. von Feist's symptoms persisted, including nausea, dizziness, strange tastes, and general disorientation. Id. at 98:10­99:20; 100:25­101:21. She returned several days later after losing consciousness in the shower. Id. at 100:23­101:12. Ms. Von Feist's symptoms have persisted to this day, leaving her too unsteady on her feet to continue performing in her traditional manufacturing roles, and too disoriented to work at a desk position. Ex. 2, Workers' Comp. Eval., at 7, 13­14. Eventually Ms. Von Feist was diagnosed as being completely disabled. Ex. 3, Dr. Helffenstein Neuropsychological Evaluation, at 19; Ex. 2, Workers' Comp. Eval., at 21. Ms. von Feist was 2

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placed on total temporary disability, and filed a complaint with OSHA in late February. Ex. 1, Von Feist Depo., at 134:24­135:22. On May 13, 2002, Ms. von Feist was terminated by Celestica. At that time, OSHA had been contacting employees at Celstica to begin interviews there two days later, on May 15, 2002, regarding Ms. von Feist's complaint. Ex. 4, Von Feist Affidavit, ¶ 4. The purported rationale for Ms. von Feist's termination was fraud in her workers' compensation claim. Mtn. for Summary Judgment, ¶ 40. Following her termination, Ms. von Feist successfully reinstated her workers' compensation case and her benefits. Celestica admitted that Ms. von Feist's claim was legitimate only two days after her filing, and settled her workers' compensation claim for $100,000 in January 2005. Ex. 5, Final Admission of Liability (mailed May 15, 2002); Ex. 1, Von Feist Depo., at 211:8­21. An Administrative Law Judge also found evidence of Ms. von Feist's disability to be credible, ruling fully in her favor before the Social Security Administration. Ex. 6, Notice of Decision. The OSHA investigation found that Celestica committed serious violations and imposed a fine. Ex. 7, Citation and Notification of Penalty, at 6­9. On July 13, 2003, Ms. von Feist retained Cecelia Serna from the Frickey Law Firm to represent her in the civil claims she had against Celestica. Ex. 4, Von Feist Affidavit, ¶ 5. On December 5, 2003, Cecelia Serna filed a complaint against Celestica on Ms. von Feist's behalf alleging (1) that Celestica failed to accommodate Ms. von Feist's disability; (2) that Celestica unlawfully terminated Ms. Von Feist in violation of public policy for filing a worker's compensation claim; and (3) that Celestica unlawfully terminated Ms. Von Feist in violation of public policy for notifying OSHA of an unsafe working environment. In April 2005, Ms. Serna 3

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left the Frickey Law Firm to open her own practice, and Ms. von Feist was informed that the Frickey Law Firm would no longer be representing her on her employment claims, but that she could continue to be represented by Ms. Serna. Beginning sometime in the fall of 2005, Ms. Serna stopped working on Ms. von Feist's case without notice. Ms. von Feist discovered some time around October 2005 that Ms. Serna was not returning calls. Id. at ¶ 8. On September 30, 2005, unknown to Ms. von Feist, Celestica filed a motion for summary judgment seeking to dismiss all three of her claims. Ms. Serna never filed a response on behalf of Ms. von Feist. In fact, Ms. von Feist was unaware that the motion had even been filed until she was personally ordered on December 28, 2005, to attend the final pre-trial conference. Id. at ¶ 9. Before the conference could take place, however, this Court granted Celestica's motion for summary judgment in a January 3, 2006, order [Doc. No. 37]. No substantive response was ever filed on behalf of Ms. von Feist. All efforts to find or contact Ms. Serna have thus far been unsuccessful, but an investigation with the Colorado Attorney Regulation Counsel is underway. Apparently, Ms. von Feist was not Ms. Serna's only client whom she abandoned. Id. at ¶ 10. Instead of having her day in court, Ms. von Feist's claims have been dismissed in their entirety and an order of costs has been entered against her. III. LEGAL STANDARD

Fed. R. Civ. P. 60(b) provides that "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: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the judgment." 4

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In determining whether excusable neglect has been established under Fed. R. Civ. P. 60(b)(1), the "trial court must determine whether excusable neglect has in fact been established, resolving all doubts in favor of the party seeking relief." Cessna Finance Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1445 (10th Cir. 1983) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). "For purposes of Rule 60(b), `excusable neglect' is understood to encompass situations in which failure to comply . . . with a deadline is attributable to negligence." Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 394 (1993). The ordinary meaning of neglect "encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness." Id. at 388 (citing Webster's Ninth New Collegiate Dictionary 791 (1983)). "The determination of whether neglect is excusable `is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.'" Jennings v. Rivers, 394 F.3d 850, 856 (10th Cir. 2005) (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395)). "Relevant factors include `the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.'" Id. (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395). In addition to the excusable neglect standard of Rule 60(b)(1), Rule 60(b)(6) provides "A motion under Rule 60(b)(6) should be granted when `appropriate to accomplish justice.'" Boughner v. Secretary of Health, Education & Welfare, 572 F.2d 976, 979 (3d Cir. 1978) (quoting Klapprott v. United States, 335 U.S. 601, 614­15 (1949)). See also Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir. 1999) (stating that relief under Rule 60(b)(6) is appropriate 5

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"when it offends justice to deny such relief"). Rule 60(b)(6) is a catch-all provision that "has been referred to as a `grand reservoir of equitable power to do justice in a particular case.'" Bartholic v. Scripto-Tokai Corp., 140 F. Supp.2d 1098, 1124 (D. Colo. 2000) (quoting Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1147 (10th Cir. 1990)). Rule 60(b)(6) relief may be more appropriate when an attorney's behavior amounts to gross negligence, rather than simple neglect. Rule 60(b)(6) has traditionally been invoked to provide relief to clients who have been abandoned by their lawyers. See, e.g., In re Fairbourn, 1983 Bankr. LEXIS 5712, *2­3 (Bankr. D. Utah 1983) ("Some courts have resolved this dilemma by treating `gross' negligence by counsel as constituting special circumstances taking the case out of subdivision (b)(1), and affording relief under (b)(6)."); Boughner, 572 F.2d at 977 (3d Cir. 1978) (holding that relief under Rule 60(b)(6) was appropriate where a summary judgment motion went unanswered due to a lawyer's "egregious conduct [that] amounted to nothing short of leaving his clients unrepresented."); Lucas v. Juneau, 20 F.R.D. 407, 411 (D. Alaska 1957) ("The conduct of the attorney was not such negligence as could be imputed to the client, but on the contrary was an abandonment of the client . . . ."); Reno v. International Harvester, 115 F.R.D. 6, 9 (S.D. Ohio 1986) ("It would be unjust--manifestly so--for the Plaintiff to lose his day in Court because his attorneys have--through no fault of his own--abandoned him"); King v. Mordowanec, 46 F.R.D. 474, 480 (D. R.I. 1969) ("[T]he court concludes that Rule 60(b)(6) relief from an order of dismissal should be granted where, as here, plaintiffs are unaware of their attorney's gross neglect in failing to prosecute . . . .").

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In addition to demonstrating that it would offend justice to deny relief, a Rule 60(b) movant must also demonstrate the existence of a meritorious defense. See In re Stone, 588 F.2d 1316, 1322 (10th Cir. 1978). Rule 60(b) "should be liberally construed when substantial justice will thus be served." Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1385 (10th Cir. 1981) (citing Pierce v. Cook & Co., 518 F.2d 720, 722 (10th Cir. 1975)). IV. ARGUMENT This Court's January 3, 2006, order granted summary judgment on (1) Plaintiff's claims under the Americans with Disabilities Act, finding that there was no genuine issue of material fact demonstrating Celestica's failure to accommodate; and (2) Plaintiff's state-law public policy claims, finding no genuine issue of material fact in support of causation. Plaintiff challenges only the dismissal of her state-law public policy claim for filing a charge with OSHA claiming wrongdoing on Celestica's part because there is sufficient evidence in the record to demonstrate a genuine issue of material fact regarding why Plaintiff was terminated. Had Ms. von Feist's counsel not abandoned her, Plaintiff would have had the opportunity to develop a record supporting her claims. A. Relief is appropriate here because Ms. von Feist had no means of knowing that Defendant had filed a motion for summary judgment.

Plaintiff's failure to file a responsive pleading to Defendant's motion for summary judgment constitutes excusable neglect. Without a lawyer to monitor her case and keep her informed regarding its developments, Plaintiff's failure to file a responsive pleading is no more than negligent, if she could be considered culpable at all.

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Alternatively, Plaintiff should be granted relief pursuant to the "catch-all" provision of Rule 60(b)(6), which permits a court to set aside an entry of judgment where "appropriate to accomplish justice." Klapprott, 335 U.S. at 614­15; Cashner v. Freedom Stores, 98 F.3d 572, 580 (10th Cir. 1996) ("Relief under Rule 60(b)(6) is appropriate when circumstances are so `unusual or compelling' that extraordinary relief is warranted, or when it `offends justice' to deny such relief.") (citing Pelican Prod. Corp., 893 F.2d at 1147). Although a client often suffers the consequences of a lawyer's mistake or omission under the theory that a client is culpable for selecting her own lawyer, prior courts have found that this principle gives way when a client is outright abandoned by her lawyer. The complete abandonment by a lawyer is so unanticipated that courts will often use Rule 60(b)(6) to prevent a faultless client from suffering the consequences of a lawyer's inexcusable behavior. Cf. Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1083 (5th Cir. 1984) ("[Rule 60(b)'s] purpose is not to give relief to the client who does not choose the best lawyer for the job. Our cases liberally construing Rule 60(b) focus on the abandonment of clients by their lawyers, not upon clients who lose."). Whether framed as a Rule 60(b)(1) or a Rule 60(b)(6) issue, the inquiry is inherently an equitable one. See Jennings, 394 F.3d at 856; Pelican Prod. Corp., 893 F.2d at 1147. The equities here weigh in favor of granting Ms. von Feist her day in court. She selected a competent plaintiffs' firm to handle her claim, and retained her lawyer when she left to open her own practice. Defendant's motion for summary judgment was only served upon Plaintiff's counsel, who failed to prepare a timely response or even notify Ms. von Feist of its existence in time to

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retain alternative counsel. As Plaintiff's former counsel has not been located, it appears unlikely that Ms. von Feist would have access to a viable legal malpractice defendant. Ms. von Feist behaved responsibly in timely pursuing alternative counsel when she realized what had happened to her case. She has filed this motion in good faith, seeking only the reinstatement of the claim most likely to succeed. Defendant would suffer little prejudice if Plaintiff is granted relief here, as it will still have the opportunity to have its motion for summary judgment heard on the merits. B. A genuine issue of material fact exists as to whether Ms. von Feist's termination was an unlawful retaliatory action.

In its January 3, 2006, order, this Court held that Plaintiff's state-law claim that she was fired in retaliation for filing a complaint with OSHA failed for lack of causation. Further, the Court held that no evidence indicated that Defendant's proffered rationalization for firing Ms. von Feist was pretextual. Had she the opportunity, Ms. von Feist could have presented evidence sufficient to demonstrate the existence of a genuine issue of material fact on this claim. A defendant's motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact regarding the existence of an element of the plaintiff's claim and that the defendant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. If the moving party successfully does so, the burden shifts to the non-moving party to provide evidence of a genuine issue of material fact

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for trial. See Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "An issue is genuine `if the evidence is such that a reasonable jury could return a verdict for a non-moving party.'" Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002) (citing Anderson, 477 U.S. at 248). In its motion for summary judgment, Defendant contends that the employee who made the decision to terminate Ms. von Feist had no knowledge that she had filed a complaint with OSHA. Mtn. for Summary Judgment, at 27­28. The only fact cited in support of this claim was that Ms. von Feist testified she only informed three non-management employees that she had complained to OSHA. Id. at 12, ¶ 46. However, Defendant was certainly aware that an OSHA investigation was ongoing. In fact, OSHA had scheduled interviews with Defendant for May 15, 2005, two days prior to Ms. von Feist's termination. Ex. 4, Von Feist Affidavit, ¶ 4. Defendant could have easily inferred that Ms. von Feist was the source of the complaint. Although three employees were initially treated at the hospital as a result of the naptha exposure, Ms. von Feist was the only employee to suffer serious and persistent side effects. Ms. von Feist was the only employee known to have been placed on total temporary disability as a result of the accident, and she was the only employee known to have retained a lawyer. Despite Ms. von Feist's absence on May 15, 2005, Defendant was still cited for an OSHA violation and fined. Ex. 7, Citation and Notification of Penalty. The Court further held that Defendant's proffered explanation for terminating Ms. von Feist was not pretextual because of "perceived fraud." While Ms. von Feist was on leave from Celestica, Defendant had her under surveillance from a private investigator. Ex. 1, Von Feist 10

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Depo., at 161:24­163:18. Defendant claims that this evidence indicated Ms. von Feist's claim was fraudulent, and that this was the basis for their decision to fire her. In fact, the only available deposition testimony in the record stated that the activities recorded in the surveillance video of Ms. von Feist were not inconsistent with her condition. Ex. 1, Von Feist Depo., at 171:19­174:18. Defendant's allegation that Ms. von Feist's claim was fraudulent was shortlived, as its workers' compensation carrier admitted liability only two days later. Ex. 5, Final Admission of Liability. More than three years later, before this Court entered summary judgment against Ms. von Feist, an Administrative Law Judge for the Social Security Administration also determined that Ms. von Feist's disability was credible, in issuing a decision fully in her favor. Ex. 6, Notice of Decision. The facts on this claim were such that a reasonable jury could have inferred that Defendant's rationale for terminating Ms. von Feist was in fact pretextual, and that she was fired in retaliation for her OSHA complaint. Plaintiff therefore, had a strong likelihood of demonstrating a genuine issue of material fact on this claim. See Sally Beauty Co., 304 F.3d at 972. Moreover, Ms. von Feist likely could have proffered more evidence in support of this claim, had her lawyer at the time conducted discovery and properly worked up the case, rather than abandoning her client. Justice would not be served here by forcing Ms. von Feist to pay the price for her lawyer's gross misfeasance. She deserves the opportunity to have her claim considered on the merits.

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WHEREFORE, based on the foregoing, Plaintiff Susan von Feist, respectfully requests that this Court grant her relief from its order granting summary judgment, allowing her to file a substantive response to Defendant's motion for summary judgment and seek reinstatement of her state-law claim for a termination in violation of public policy. Dated March 15, 2006.

s/ Justin G. Blankenship Elizabeth A. Starrs Justin G. Blankenship STARRS MIHM & CASCHETTE, LLP 1675 Broadway, Suite 1800 Denver, Colorado 80202 303-592-5900 [email protected] [email protected] Attorneys for Plaintiff Susan von Feist

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CERTIFICATE OF SERVICE I hereby certify that on March 15, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Lisa S. McKelvey, Esq. Charles W. Weese, Esq. Geri K. House, Esq. FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203 303-607-3500 [email protected] [email protected] [email protected]

s/ Justin G. Blankenship Elizabeth A. Starrs Justin G. Blankenship STARRS MIHM & CASCHETTE, LLP 1675 Broadway, Suite 1800 Denver, Colorado 80202 303-592-5900 [email protected] [email protected] Attorneys for Plaintiff Susan von Feist