The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PROGME CORPORATION,
Plaintiff,
Case No. 18-11728
v.
Hon. Denise Page Hood
GOOGLE LLC,
Defendant.
___________________________________/
ORDER DENYING MOTION TO SET ASIDE JUDGMENT
AND ORDER GRANTING DEFENDANTS= MOTIONS TO DISMISS
UNDER FED. R. CIV. P. 60(b)(1) (#62)
On May 23, 2023, the Court entered an Opinion and Order granting
Defendants= Motion to Dismiss and a Judgment against Plaintiff Progme
Corporation. (ECF Nos. 60, 61) This matter is before the Court on
Progme=s Motion to Set Aside Judgment and Order Granting Defendants=
Motion to Dismiss. (ECF No. 62)
Rule 60(b) of the Federal Rules of Civil Procedures provides that,
[T]he 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.
Fed. R. Civ. P. 60(b)(1). The standard under Rule 60(b) is significantly
higher than the Rule 59(e) standard. Feathers v. Chevron U.S.A., Inc.,
141 F.3d 264, 268 (6th Cir. 1998). The Supreme Court approved the
following factors that a court may consider in finding excusable neglect: 1)
the danger of prejudice to the debtor; 2) the length of the delay and its
potential impact on judicial proceedings; 3) the reason for the delay,
including whether it was within the reasonable control of the movant; and,
4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P ship, 507 U.S. 380, 395 (1993). The Supreme
Court disapproved the allowance of a late claim based on the omissions of
an attorney. Id. at 396. The Supreme Court noted that Aclients must be
held accountable for the acts and omissions of their attorneys.@ Id. at 396.
A client, having chosen a particular attorney to represent him in a
proceeding, cannot Aavoid the consequences of the acts or omissions of
this freely selected agent,@ and that A[a]ny other notion would be wholly
inconsistent with our system of representative litigation, in which each party
is deemed bound by the acts of his lawyer-agent and is considered to have
notice of all facts, notice of which can be charged upon the attorney.@ Id.
at 397. In assessing a claim of excusable neglect, Athe proper focus is
upon whether the neglect of [the parties] and their counsel was excusable.@
Id. (emphasis in original). An attorney or pro se litigant=s failure to timely
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meet a deadline because of A[i]nadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute >excusable neglect.=@
Id. at 392; Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991).
The Sixth Circuit has established that ARule 60(b) does not allow a
defeated litigant a second chance to convince the court to rule in his or her
favor by presenting new explanations, legal theories, or proof.@ Jinks v.
Allied Signal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). Reliance on the
Pioneer factors is inappropriate where procedural default was not at issue.
Id. at 386. Where the court did consider the merits of the appellant=s claim
in granting the summary judgment motion, the Pioneer factors are not
controlling. Yeschick v. Mineta, 675 F.3d 622, 629 (6th Cir. 2012).
Progme is seeking a reversal of this Court=s ruling based on the
analysis of the merits of the parties= various arguments. The Pioneer
factors are not controlling since Progme=s arguments do not go to any
procedural default, such as missing a deadline in filing a brief. Rather,
Progme is arguing that it should be allowed to raise a new argument
because it did not include a specific fact in its complaints and that its failure
to do so constituted Aexcusable neglect.@ Even though the Pioneer factors
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do not apply in this instance, the Court will address the factors set forth in
Pioneer to determine if Progme has established Aexcusable neglect.@
Progme asserts that its failure to locate and specify the synchronized
(mLock) {...} as said timer means and determined offset values@ constitutes
an Aexcusable neglect@ that warrants the setting aside of the Judgment. As
to the first factor of prejudice, Progme asserts Google would not be
prejudiced. The Court finds that Google is prejudiced because it is
Progme=s burden to state the appropriate allegations and facts to support its
complaint. Progme had ample time and opportunities to allege such facts
in its complaints, but failed to do so, until the Court ruled Progme failed to
properly assert claims in its complaints.
Regarding the second factor, the length of the delay, this factor is
significant since Progme filed this case and the related case in 2018.
Allowing Progme another chance to amend its complaint would significantly
impact the judicial proceedings in that more rounds of briefing will most
likely occur in new motions to dismiss.
The third factor, Progme=s reason for the delay, is insufficient in that it
was within Progme=s control to add the factual allegations in its complaints.
Progme admits there is no new evidence. Progme previously failed to
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properly allege facts in its complaints.
Addressing the fourth factor, good faith, Progme=s actions in failing to
properly state the factual allegations in its complaints is not made in good
faith because Progme had the information all along in its possession.
Progme is accountable for its counsel=s actions in failing to allegedly add
certain facts in its complaints.
Weighing the factors noted above, even if applicable to Progme=s
arguments, Progme has failed to show excusable neglect in failing to
properly allege facts in its complaints. Progme has not met its burden in
showing Aexcusable neglect@ in failing to add facts to its complaints, where
Progme had the information all along.
As to Progme=s claim that the Court made a Amistake@ in its ruling, the
Court finds that the Amistake@ in Rule 60(b)(1) is not the Court=s mistake but
the movant=s mistake, such as a mistake in interpreting rules or ignorance of
the law. Progme is essentially asking the Court to reconsider its ruling, and
the Court so declines. Progme admits in this motion that it neglected to
locate and specify synchronized (mLock) {...} as said timer means and
determined offset values inherent in the listed source code lines in Google=s
alleged infringing code. The Court did not make a Amistake@ in finding that
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Progme failed to meet its burden in placing Google on notice of what activity
Google is being accused of infringing. Progme failed to allege facts in
support of its claims.
For the reasons set forth above,
IT IS ORDERED that Plaintiff=s Motion to Set Aside Judgment and
Order Granting Defendants= Motions to Dismiss (ECF No. 62) is DENIED.
s/Denise Page Hood
United States District Judge
Dated: March 28, 2024
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