United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
matter is before the court on Plaintiff Carol Tufts'
(“Plaintiff”) and Defendants Medtronic, Inc. and
Medtronic USA, Inc.'s (“Defendants”) Consent
Motion to Amend/Alter (“Consent Motion”) the
court's March 21, 2017 Judgment (ECF No. 20). (ECF No.
25.) For the reasons stated below, the court
GRANTS the Motion.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
March 11, 2016, Defendants filed a Motion to Dismiss
Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6)
because her claims were allegedly preempted by federal law.
(ECF No. 5.) On March 21, 2017, the court granted
Defendants' Motion to Dismiss with prejudice. (ECF No.
19.) The court's Order noted that Plaintiff had failed to
secure replacement counsel (see ECF Nos. 13, 14) and
had failed to respond to the Motion to Dismiss but,
nonetheless, proceeded to decide the Motion on the merits.
(Id.) On the same day, the court entered judgment in
favor of Defendants in accordance with the Order. (ECF No.
20.) On June 5, 2016, the parties jointly filed a Consent
Motion to Amend/Alter the judgment pursuant to Fed.R.Civ.P.
60. (ECF No. 22.) On June 12, 2017, the court filed a Text
Order denying the Consent Motion without prejudice for
failure to “sufficiently [ ] address the standards for
granting Rule 60(b) relief” and because of the
“courts [inability] to determine that
[amendment/alteration] is warranted for the single,
undeveloped reason offered by the parties.” (ECF No.
23.) The parties refiled their Consent Motion to Amend/Alter
Judgment on September 27, 2017, with a Memorandum in Support.
(ECF Nos. 25, 25-1.)
filed her initial Complaint in the Court of Common Pleas for
Aiken County (South Carolina), and Defendants removed the
case to this court. (ECF Nos. 1, 1-1.) The court has
jurisdiction over this case pursuant to 28 U.S.C. § 1332
as complete diversity exists between the parties and the
amount in controversy exceeds $75, 000. (ECF No. 1 at 3-6
¶¶ 8-19.) See also (ECF Nos. 1-1 at 7
a party may seek relief under Rule 60(b), a party first must
show timeliness, a meritorious defense, a lack of unfair
prejudice to [any] opposing party, and exceptional
circumstances. After a party has crossed this initial
threshold, he then must satisfy one of the six specific
sections of Rule 60(b)." Dowell v. State Farm Fire
& Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.
1993) (citing Werner v. Carbo, 731 F.2d 204, 207
(4th Cir. 1984)). A court may relieve a party from a final
judgment under Rule 60(b) for the following reasons:
“(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.” A
motion under this rule must be made within a reasonable time,
and relief under reasons (1), (2), and (3) is not available
after one year from the entry of the judgment. Fed.R.Civ.P.
obtain relief under Rule 60(b)(1), a party must demonstrate
inter alia that he was not at fault and that the
non-moving party will not be prejudiced by the relief from
judgment. Home Port Rentals, Inc. v. Ruben, 957 F.2d
126, 132 (4th Cir. 1992).
under Rule 60(b)(6) requires a showing of
“extraordinary circumstances.” Aikens v.
Ingram, 652 F.3d 496, 510 (4th Cir. 2011) (citing
Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118
n.2 (4th Cir. 2000)). Rule 60(b)(6) provides a “grand
reservoir of equitable power to do justice in a particular
case.” Eberhardt v. Integrated Design & Const.,
Inc., 167 F.3d 861, 872 (4th Cir. 1999) (citing
Compton v. Alton S.S. Co., 608 F.2d 96, 106-07 (4th
the threshold requirements for relief under Rule 60(b), the
court's Order and Judgment were filed on March 21, 2017
(ECF Nos. 19, 20), and the Consent Motion was timely filed on
September 27, 2017. (ECF No. 25.) Secondly, the parties
assert that “. . . Plaintiff, if given the opportunity
to amend her Complaint, would present a meritorious
defense to Defendants' Motion to
Dismiss.” (ECF No. 25-1 at 4.) Lastly, as to the lack of
unfair prejudice to an opposing party, the parties have
joined in a Consent Motion and agree that the Judgment
dismissing Plaintiff's case should be amended to
dismissal without prejudice, in contemplation of her joining
a broader group of cases involving Defendants. (Id.
at 4.) The parties assert that “neither party will be
prejudiced by this amendment.” (Id.)
original counsel's Motion to Withdraw was granted on
December 16, 2016, and the court gave Plaintiff ninety (90)
days to secure new counsel. (ECF No. 14.) The court's
March 21, 2017 Order granting Defendants' Motion to
Dismiss noted that Plaintiff had not secured new counsel, as
there was no record of Plaintiff's alleged new attorney
making an appearance in the case. (ECF No. 19 at 1-2.)
Moreover, Plaintiff signed the Consent Motion as a pro
se plaintiff. (ECF 25-1 at 7.) However, the parties
assert that Plaintiff retained a new lawyer, and when this
occurred, negotiations began with both parties contemplating
a dismissal of the case without prejudice in return for
tolling the statute of limitations (“Tolling
Agreement”). (Id. at 1.)
Consent Motion is brought under Fed.R.Civ.P. 60(b)(1) and
(b)(6). (Id. at 2.) As to Rule 60(b)(1), the parties
argue that there has been “excusable neglect” in
that they “. . . [made an oversight and] failed to file
the Tolling Agreement [and renewed motion to dismiss] before
the court . . . entered an Order of dismissal with
prejudice[.]” (Id. at 4.) Under Rule 60(b)(1),
a party must demonstrate that he, she, or it is not at fault,
and both parties admitted to making an oversight in not
filing the Tolling Agreement and renewed motion to dismiss.
See Home Port Rentals, Inc., 957 F.2d at 132. In
addition, neither party notified the court of any impending
settlement agreements or moved to stay the court's
judgment on the Motion to Dismiss until the agreement was
parties' attorneys neglected to inform the court about
their negotiations or other progress in the case. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship,507 U.S. 380, 388 (1993) (“[t]he word
[neglect] therefore encompasses both simple, faultless
omissions to act and, more commonly, omissions caused by
carelessness.”) This neglect is not excusable, however,
because “a lawyer's [ ] carelessness do[es] not
present cognizable grounds for relief under [Rule]
60(b)[.]” Evans v. United Life & Accident
Insurance Co., 871 F.2d 466, 472 (4th Cir. 1989) (citing
Universal Film Exchanges, Inc. v. Lust, 479 F.2d
573, 576-577 (4th Cir. 1973); see also Robinson v. Wix
Filtration Corp. LLC,599 F.3d 403, 413 (4th Cir. 2010)
(“[a] party that fails to act with diligence will ...