# Nathan v. Cavendish

> United States Bankruptcy Court, E.D. Michigan · November 14, 2019

URL: https://www.frixlaw.com/law-library/cases/10458759

## Case

- **Court:** United States Bankruptcy Court, E.D. Michigan
- **Decided:** November 14, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re:
Case No. 17-57206
HUGH EDWARD CAVENDISH,
Chapter 7
Debtor.
/ Judge Thomas J. Tucker
KENNETH A. NATHAN, TRUSTEE,
Plaintiff,
vs. Adv. Pro. No. 19-4061
TINA L. CAVENDISH,
Defendant.
/
OPINION AND ORDER DENYING THE MOTION BY DEFENDANT
TO SET ASIDE DEFAULT JUDGMENT
This case is before the Court on the Defendant Tina Cavendish’s motion entitled “Motion
to Set Aside Default Judgment,” filed on November 9, 2019 (Docket # 49, the “Motion”), which
the Court construes as a motion for reconsideration of, and for relief from, the default judgment
entered on September 9, 2019 (Docket # 45, the “Default Judgment”). The Court will deny the
Defendant’s Motion, for the following reasons.
First, the Court finds that the Motion fails to demonstrate a palpable defect by which the
Court and the parties have been misled, and that a different disposition of the case must result
from a correction thereof. See Local Rule 9024-1(a)(3).
Second, the allegations in the Motion do not establish excusable neglect under Fed. R.
Civ. P. 60(b)(1), Fed. R. Bankr. P. 9024, or any other valid ground for relief from the Default
Judgment.
Third, the Motion alleges, in effect, that the Default Judgment was entered because of
neglect or a mistake by the Defendant’s attorney, namely, the failure by Defendant’s counsel to
appear at the September 9, 2019 final pretrial conference. The Motion alleges that this failure to

appear was because of “an error in Defendant’s counsel’s scheduling and calendaring process.”
(Motion at ¶ 7).1 That failure to appear was only one of two independent reasons why the
Default Judgment was entered, as discussed below. But in any event, any neglect or mistake by
the Defendant’s attorney must be deemed attributable to the Defendant, for purposes of
determining whether there was excusable neglect or mistake. See, e.g., Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396-97 (1993) (in determining whether “excusable
neglect” is shown, “the proper focus is upon whether the neglect of [the movants] and their

counsel was excusable”) (italics in original). In the Pioneer case, the United States Supreme
Court reasoned:
“Petitioner voluntarily chose this attorney as his representative in
the action, and he cannot now avoid the consequences of the acts
or omissions of this freely selected agent. Any 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.’” . . .
This principle applies with equal force here and requires that
respondents be held accountable for the acts and omissions of their
1 Defense counsel continues to have a problem in consistently stating the correct date of the final
pretrial conference. The Motion states at least twice that the Court’s Scheduling Order set the final
pretrial conference for September 24, 2019. (Motion at ¶ 3; Motion Brief at pdf page 8). That is
incorrect — the Adversary Proceeding Scheduling Order, entered on April 1, 2019, clearly scheduled the
final pretrial conference for September 9, 2019 at 9:00 a.m. September 24, 2019 was the trial date. (See
Docket # 12 at 2).
2
chosen counsel.
507 U.S. at 397 (quoting, in part, Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)).
The allegations of the Motion do not demonstrate a mistake or neglect by the Defendant’s
attorney that is excusable. Under the circumstances, the type of mistake or neglect by the

Defendant’s attorney that is alleged in this case is not “excusable neglect.” See, e.g., Symbionics,
Inc. v. Ortlieb, 432 Fed. App’x. 216, 220 (4th Cir. 2011) (holding “that the district court abused
its discretion when it determined that . . . counsel’s computer calendaring error constituted
excusable neglect”); In re Bonfiglio, No. 18-8004, 2018 WL 5295879, at *5 (B.A.P. 6th Cir. Oct.
24, 2018) (holding that a litigation error (failing to respond to a motion to avoid a lien which
resulted in lien avoidance) was not “excusable neglect”).
In Bonfiglio, for example, the Sixth Circuit Bankruptcy Appellate Panel held that:

“‘case law consistently teaches that out-and-out lawyer
blunders—the type of action or inaction that leads to successful
malpractice suits by the injured client—do not qualify as ‘mistake’
or ‘excusable neglect’ within the meaning of Rule 60(b)(1).’”
Barron v. Univ. of Mich., 613 F. App’x. 480, 487 (6th Cir. 2015)
(citing McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt,
Inc., 298 F.3d 586, 595 (6th Cir. 2002)).
2018 WL 5295879, at *4.
In the Symbionics case, the United States Court of Appeals for the Fourth Circuit
discussed in detail the application of the four Pioneer factors “to be considered in determining
whether excusable neglect exists” in this type of attorney-error situation. 432 Fed. App’x at
219.2 Among other things, Symbionics held that the third Pioneer factor, which the court phrased
2 “They are: ‘[1] danger of prejudice to the [opposing
party], [2] the length of delay and its potential impact on
judicial proceedings, [3] the reason for the delay,
3
as “the untimely party’s reason for the delay,” and which Pioneer phrased as “the reason for the
delay, including whether it was within the reasonable control of the movant,” is “the most
important to the excusable neglect inquiry.” Id. (citation omitted). In Symbionics, the Fourth
Circuit held that the attorney’s neglect in that case — a miscalculation of the appeal deadline

allegedly caused by “a quirk in the functionality of counsel’s computer calendar” — was not
excusable neglect. Id. at 218, 220. After noting that “[e]xcusable neglect is not easily
demonstrated, nor was it intended to be,” the Fourth Circuit found as follows:
We find nothing extraordinary or unusual about counsel's
calendaring error that should relieve Symbionics of its duty to
comply with the time limit of Rule 4(a)(1). Counsel's total
dependence on a computer application — the operation of which
counsel did not completely comprehend — to determine the filing
deadline for a notice of appeal is neither “extraneous” to nor
“independent” of counsel's negligence. Rather, the failure to
discover that the calendar display had reverted to January 2009,
and the reliance on the resulting incorrect deadline computation,
are the very essence of counsel's negligence here. Furthermore, this
neglect is precisely the sort of “run-of-the-mill inattentiveness
by counsel” that we have consistently declined to excuse in the
past.
Id. at 220 (emphasis added) (citations omitted) (internal record citation omitted).
The reasoning and holding of Symbionics applies to this case. In this case we have, at
best from Defendant’s perspective, a case of “run-of-the-mill inattentiveness by counsel.” The
including whether it was within the reasonable control
of the movant, and [4] whether the movant acted in good
faith.’ Pioneer, 507 U.S. at 395, 113 S.Ct. 1489
(interpreting ‘excusable neglect’ in the context of Rule
9006(b)(1) of the Federal Rules of Bankruptcy
Procedure).”
Id.
4
“error in Defendant’s counsel’s scheduling and calendaring process” alleged in the Motion is not
a valid excuse for defense counsel’s failure to be conscious of, and attend, the September 9, 2019
final pretrial conference. This is particularly so in this case, given that Defendant’s attorney
personally attended the April 1, 2019 scheduling conference, during which the Court orally

announced that the final pretrial conference would be September 9, 2019 at 9:00 a.m.,3 and
following which the Court promptly issued its scheduling order confirming that date and time.
(Docket # 12 at 2).4
Fourth, the Default Judgment was not entered solely because of Defendant’s counsel’s
failure to appear at the final pre-trial conference on September 9, 2019. That was only one of
two reasons for the Court’s entry of the Default Judgment. As is clear from the Court’s oral
ruling made on the record during the September 9, 2019 final pretrial conference,5 the Default

Judgment also was entered based on L.B.R. 7016-1(c) (E.D. Mich.) because of the Defendant’s
attorney’s failure to cooperate in the preparation of a proposed joint final pretrial order. The
Motion alleges no reason, let alone a valid excuse, for defense counsel’s failure to cooperate in
the preparation of a proposed joint final pretrial order, as required by L.B.R. 7016-1(a) and (c)
and by Section II of the Adversary Proceeding Scheduling Order entered on April 1, 2019

3 A digital audio recording of the April 1, 2019 scheduling conference is on file, at Docket
# 14 in this adversary proceeding.
4 The Motion argues at some length that Defendant has a meritorious defense to present if relief
from the Default Judgment is granted. But the Court may not consider this issue — whether Defendant
can present a meritorious defense to Plaintiff’s claim(s) — unless and until the Court first finds that there
was neglect or mistake that is “excusable” under Rule 60(b)(1). See, e.g., In re Sharkey, 560 B.R. 470,
472 (Bankr. E.D. Mich. 2016) (citing Waifersong, Ltd. v. Classic Music Vending, 976 F.2d 290, 292 (6th
Cir. 1992)).
5 A digital audio recording of the September 9, 2019 final pretrial conference is on file, at
Docket # 47 in this adversary proceeding.
5
(Docket # 12).
Fifth, the Motion, which was filed a full two months after entry of the Default Judgment,
is untimely. This is because (1) to the extent it is viewed as a motion for reconsideration, the
Motion was not filed within 14 days after entry of the Default Judgment, as required by L.B.R.
9024-1(a)(1) (E.D. Mich.); and (2) to the extent it is viewed as a motion under Fed. R. Civ. P.
60(b), the Court finds that the Motion was not filed “within a reasonable time,” as required by
Fed. R. Civ. P. 60(c)(1). The Motion alleges no reason, let alone a valid excuse, for Defendant’s
failure to seek relief from the Default Judgment for so long as two months.
For the foregoing reasons,
IT IS ORDERED that the Motion (Docket # 49) is denied.

Signed on November 14, 2019 EM,
© ma /s/ Thomas J. Tucker
I Thomas J. Tucker
— a United States Bankruptcy Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10458759. Public record. Not legal advice.