United States District Court, S.D. West Virginia, Charleston Division
IN RE C. R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
C. R. Bard, Inc. Civil Action No. 2:15-cv-03312 THIS DOCUMENT RELATES TO: Garrett et al.
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is the Unopposed Motion for Relief Under
Federal Rule of Civil Procedure 60(b), filed by the plaintiff
on May 1, 2018 [ECF No. 7]. In the Motion, the plaintiff
seeks an order vacating this court's order of dismissal
entered May 17, 2017 [ECF No. 6], under Rule 60(b)(1) because
it was secured by mistake, inadvertence, or the excusable
neglect of plaintiff's counsel Lee B. Balefsky. As stated
in his attached Declaration, Mr. Balefsky moved to dismiss this
case under the mistaken belief that the plaintiff executed an
agreement through another firm to, correspondingly, dismiss
this civil action with prejudice.
60(b) allows a court to ‘relieve a party . . . from a
final judgment, order or proceeding' on a limited number
of grounds.” We ls Fargo Bank,
N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 299 (4th
Cir. 2017) (quoting Fed.R.Civ.P. 60(b)). While the Fourth
Circuit has held that an “attorney's negligence may
qualify as a ‘mistake' or as ‘excusable
neglect' under Rule 60(b)(1)” see Augusta
Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,
843 F.2d 808, 811 (4th Cir. 1988); see United States v.
Moradi, 673 F.2d 725, 728 (4th Cir. 1982); but see
Robinson v. Wix Filtration Corp., 599 F.3d 403, 412-13
(4th Cir. 2010) (concluding that “excusable
neglect” not established even though attorney was to
blame), there is some tension between the Fourth
Circuit's increasingly liberal view and the Supreme
Court's announcement that parties ought to be held
accountable for the acts and omissions of their attorneys.
See U.S. Foodservice, Inc. v. Donahue, 764 F.Supp.2d
816, 821 n.4 (S.D. W.Va. 2011) (citing Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 396 (1993) (“[W]e have held that clients must
be held accountable for the acts and omissions of their
lawyer neglect can be deemed as “excusable, ”
according to the Supreme Court, is “at bottom an
equitable one, taking account of all relevant circumstances
surrounding the party's omission, ” including
“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.” Gaskins v. BFI
Waste Servs., LLC, 281 Fed.Appx. 255, 260 (4th Cir.
2008) (citing Pioneer Inv. Servs. Co., 507 U.S. at
the standard equitable considerations differ drastically from
a simple civil action because the pretrial process of this
case has been coordinated in conjunction with several
thousands of similar cases against the same
defendant in this ongoing MDL. As such, the degree in which a
plaintiff “controls” his or her counsel is - to a
noticeable degree - more attenuated given the sometimes
protracted nature of litigating a multidistrict civil
action-particularly when, as here, no scheduling order bound
the parties in this case to a defined motions practice or
discovery timeline when plaintiff's counsel moved to
voluntarily dismiss this case. Likewise, the impact on the
parties is nominal. Because the Motion is unopposed, the
court can also infer the absence of any prejudice to the
defendant in granting relief under Rule 60, and nothing in
the record suggests that the plaintiff is moving in bad
reasons stated above, and in light of this jurisdiction's
strong preference that claims be disposed of on their merits,
the court FINDS that Mr. Balefsky's
mistaken belief that the plaintiff executed an agreement
through another firm to, correspondingly, dismiss this civil
action with prejudice constitutes “excusable
neglect” as understood by Rule 60(b)(1).
neglect notwithstanding, Rule 60 also requires a motion
brought pursuant to Rule 60(b)(1) be made “within a
reasonable time” and “no more than a year after
the entry of the judgment or order.” Fed.R.Civ.P.
60(c)(1). “[T]he movant bears the burden of showing
timeliness.” Moses v. Joyner, 815 F.3d 163,
166 (4th Cir. 2016).
to the Motion, counsel “acted promptly as soon as he
became aware of the mistake.” Pl.'s Memo. of Law in
Supp. of Her Unopposed Mot. for Relief Under F.R.C.P. 60(b),
at 5 [ECF No. 7]. This claim unopposed, and cognizant of the
posture of this case at the time and the inherent
peculiarities present in MDL cases described above, the court
FINDS that the plaintiff filed the instant
motion within a “reasonable time.”
the Unopposed Motion for Relief Under Federal Rule of Civil
Procedure 60(b) [ECF No. 7] is GRANTED and
the Order Approving the Voluntary Dismissal of this case [ECF
No. 6] is VACATED.
Clerk is DIRECTED to reinstate this case to
the active docket. The Clerk is further
DIRECTED to send a copy of this Order to
counsel of record and any unrepresented party.
 Mr. Balefsky filed a Notice of
Voluntary Dismissal pursuant to Rule 41(a)(1)(A)(i), which
the court construed as ...