United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Reconsideration
of Judgment on Motion for Summary Judgment, ECF No. 76, filed
by Plaintiff Thomas Majda, Jr. For the reasons stated below,
the Motion will be denied.
does not ask the Court to revise its factual recitation. The
Court incorporates its background discussion from its
Memorandum and Order, ECF No. 74, granting summary judgment
in favor of Defendant Brenna Moray by reference, and provides
the following summary:
22, 2016, Plaintiff filed his Complaint and asserted a claim
for negligence against Defendant Brenna Moray under Nebraska
law. On March 6, 2018, the Court granted Moray's Motion
for Summary Judgment and dismissed this action with
prejudice. ECF No. 74. Plaintiff failed to respond to
Moray's Motion for Summary Judgment and now requests
relief from that final judgment under Fed.R.Civ.P. 60(b)(1)
for “excusable neglect.” Specifically, Plaintiff
asks the Court to vacate its final judgment, reopen this
case, and permit him to submit a brief in opposition to
Moray's Motion for Summary Judgment. ECF No. 76.
Rule of Civil Procedure 60(b)(1) allows a court to relieve a
party from a final judgment for “mistake, inadvertence,
surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
However, “Rule 60(b) authorizes relief in only the most
exceptional cases.” U.S. Commodity Futures Trading
Comm'n v. Kratville, 796 F.3d 873, 896 (8th Cir.
2015). The Eighth Circuit has “identified two
components of excusable neglect: ‘(1) neglect or
noncompliance . . . (2) that is excusable.”
Id. (quoting In re Guidant Corp. Implantable
Defibrillators Prods. Liab. Litig., 496 F.3d 863, 866
(8th Cir. 2007)). Courts consider the following factors when
analyzing whether conduct is “excusable”:
“(1) the danger of prejudice to the non-moving party;
(2) the length of the delay and its potential impact on
judicial proceedings; (3) whether the movant acted in good
faith; and (4) the reason for the delay, including whether it
was within the reasonable control of the movant.”
Kratville, 796 F.3d at 896 (citing Pioneer Inv.
Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S.
380, 395 (1993). These “factors do not carry equal
weight; the reason for delay is a key factor in the
analysis.” Kratville, 796 F.3d at 896 (citing
Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463
(8th Cir. 2000). “The existence of a meritorious
defense is also a relevant factor.” Feeney v. AT
& E, Inc., 472 F.3d 560, 563 (8th Cir. 2006). Rule
60(b) is not “a vehicle for relief because of an
attorney's incompetence or carelessness.”
Kratville, 796 F.3d at 896 (quoting Inman v. Am Home
Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir.
1997) (emphasis excluded)).
counsel states that he neglected to respond to Moray's
summary judgment motion because his staff failed to place the
deadline on his calendar. He also notes that he was tending
to several other cases and he was forced to implement new
case management and scheduling software in December of 2017
after the dissolution of a partnership. Moray moved for
summary judgment on January 5, 2018. ECF No. 71.
parties agree, and the Court does not doubt, that
Plaintiff's counsel acted in good faith at all times.
Moray does not contend that she would suffer any meaningful
prejudice if the Court granted Plaintiff's Rule 60(b)(1)
motion. However, this Court's local rules clearly provide
that “[a] brief opposing a motion . . . for summary
judgment must be filed and served within 21 days after the
motion and supporting brief are filed and served[, ]”
NECivR. 7.1(b)(1)(B), and “the failure to follow the
clear dictates of a court rule [does not] constitute[ ]
excusable neglect[, ]” Noah v. Bond Cold
Storage, 408 F.3d 1043, 1045 (8th Cir. 2005). Further,
compliance with NECivR. 7.1(b)(1)(B) was in counsel's
reasonable control, which is the key factor to be considered.
Kratville, 796 F.3d at 896. As such, the Court finds
that Plaintiff has failed to demonstrate excusable neglect
under Fed.R.Civ.P. 60(b)(1).
also contends that the Court must grant his motion under Rule
60(b)(1) because he had a meritorious defense to the motion
for summary judgment. He argues that his claim against Moray
for failure to repair or make safe the concrete stairs at
issue should not have been dismissed because the
International Residential Building Code (IRBC) imposed a tort
duty upon Moray, as a landlord, to repair the stairs and make
them safe. Pl.'s Br. Mot. Reconsider, ECF No. 81, Page ID
433 (“Plaintiff here argues that the source of that
duty is the statute adopting the building codes.”).
Yet, Plaintiff failed to demonstrate that the IRBC imposes
such a duty upon landlords under Nebraska law.
correctly points out that the Nebraska legislature adopted
the IRBC in the Building Construction Act, Neb. Rev. Stat.
§ 71-6403, and he also correctly points out that a
statute or ordinance may give rise to a tort duty, see
Tolbert v. Jamison, 794 N.W.2d 877, 883 (Neb. 2011). The
requirements of the IRBC, however, do not automatically give
rise to a particular tort duty on the part of landlords to
repair and make safe. Stonacek v. City of Lincoln,
782 N.W.2d 900, 909 (Neb. 2010) (citing Claypool v.
Hibberd, 626 N.W.2d 539, 545 (Neb. 2001)
(“Consideration of the Legislature's purpose in
enacting a statute is central to the analysis of whether the
statute defines a duty in tort.”). The Nebraska Supreme
Court has clearly explained:
a statute . . . may give rise to a tort duty to act in the
manner required by the statute where the statute is enacted
to protect a class of persons which includes the plaintiff,
the statute is intended to prevent the particular injury that
has been suffered, and the statute is intended by the
Legislature to ...