Constructive disappearance to show extraordinary circumstances under FRCP 60 (b) (6) a small avenue of hope in the Second Circuit

Federal Rules of Civil Procedure Rule 60 (b) (6) Federal Rules of Civil Procedure rule 60 (b) provides, in pertinent part, “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:…(6) any other reason that justifies relief.”1 Therefore, the aforesaid rule arms a court with the discretionary power to relieve a party from a final judgment when the motion is “addressed to the sound discretion of the district court.”2

The relief provided under Federal Rules of Civil Procedure rule 60 (b) (6) is guided by principles of equity, and “the rule is designed to strike a balance between the interests of fairness and finality of judgments; nevertheless, [courts have held that] final judgments should not be lightly reopened.”3 Further, the relief under subsection six is available only if said grounds are not encompassed within the first five clauses of Rule 60 (b).4

Moreover, before success is attained by a movant, she must satisfactorily demonstrate that she maintains a meritorious claim5 and that said claim is brought within a reasonable time.6 Additionally, a client must show diligence in the prosecution of his case,7 and the evidence in support of such a motion must be highly convincing.8

As if this threshold were not high enough, the potential relief found in Rule 60 (b) (6) is fitting only in cases demonstrating extraordinary circumstances or extreme hardship.9 Ex­traordinary circumstances are present when an attorney’s failures are so egregious and profound that they amount to abandonment of the client’s case, either via physical or constructive disappearance.10

Defining Constructive Disappearance
Constructive disappearance is different than physical disappearance, which is when an attorney has abandoned his case by physically disappearing.11 In contrast, constructive disappearance is the functional equivalent of physically disappearing. While an attorney may have appeared on behalf of her client, she, for all intents and purposes, is considered to have abandoned her client and her client’s case through her egregious and profound behavior.

The exact kind of behavior sufficient to warrant a finding of constructive disappearance, however, has been significantly curtailed and narrowed by the Second Circuit and Courts therein. For example, an attorney’s “mistake or omission [due to] ignorance of the law or of the rules of the court, inability to efficiently manage his caseload,”12 or gross negligence, in the absence of extraordinary circumstances, is insufficient to establish extraordinary circumstances, and such will not fall within the confines of Rule 60 (b) (6).13 Litigant Left With Legal Malpractice

In fact, the Eastern District in Vega, supra, highlights the rather slender avenue that Rule 60 (b) (6) affords litigants when it noted “[a] true Rule 60 (b) motion must be predicated on one of five narrow and specific grounds or on a sixth ground which, despite its open wording, has been narrowly cabined by the precedent of this Court.”14 Furthermore, while Courts view a Rule 60 (b) motion more favorable because it permits them the ability to reach the merits of a case,15 the Second Circuit’s position, as evinced by Harris v. United States, discussed infra, often times is the rigid approach that the attorney’s conduct does not rise to the level of extraordinary circumstances and that Plaintiff’s remedy is against her former counsel via a legal malpractice claim.16

In Harris, the Second Circuit held that “[i]n typical civil proceedings, the Court very rarely grants relief under Rule 60 (b) (6) for cases of alleged attorney failure or misconduct.”17 Ex­plaining its rationale, the Harris Court pointed to Justice Harlan’s opinion in Link v. Wabash Railroad Co.18 In affirming a dismissal for failure to prosecute, he wrote:

“There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of 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. Id. at 633-34, 82 S.Ct. 1386 (internal quotation marks and citations omitted).”19

A Glimmer In The Darkness Despite the aforesaid language and the harshness that these cases have on a Plaintiff whose attorney has seemingly quit working and advocating on her behalf, there are some cases that may provide her hope. Initially, these constructive disappearance cases required a mental illness or mental problems in order to obtain relief under Rule 60 (b) (6); however, it is clear that such is not mandated.

In fact, and standing in stark contrast to the narrow language above, the Second Circuit has held that subsection six of Federal Rules of Civil Procedure rule 60 is “a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses.”20 As such, the judicial discretion permitted “is especially broad under clause (6) to accomplish justice.”21 Additionally, in a suitable case where extraordinary circumstances are present, clause six is to be liberally applied.22

For example, the Second Circuit in United States v. Cirami, supra, found that such “constructive disappearance” constituted extraordinary circumstances for the purposes of vacating a prior Order of the Eastern District that granted Summary Judgment by default.23 Interestingly, in Cirami, the Second Circuit was hearing its second Rule 60 (b) (6) motion, having affirmed the denial of the first one due to a lack of reasons for the default.24 Specifically, the Court told Cirami in his initial case that he needed either an Affidavit explaining the default or to indicate the efforts to obtain his prior attorney’s testimony.25 In the second said motion, however, the Ciramis proffered sufficient evidence via Affidavits outlining the reasons for said default, which demonstrated extraordinary circumstances.26

The substance of those Affidavits highlighted the efforts of the client, Salvatore Cirami, to contact his attorney as well as the efforts of Cirami’s accountant, Louis DeStefano. While Cirami, himself, was not able to contact his attorney, DeStefano was, and each time, Cirami’s attorney constantly assured DeStefano that the case was being properly handled.27 Additionally, the Ciramis submitted Affidavits of his former attorney and a psychologist who revealed that his former attorney was suffering from a psychological disorder.28

The Second Circuit noted the following:
“we have the possibly unique fact of what we may term the ‘constructive disappearance’ of [Cirami’s] attorney, who was allegedly suffering from a psychological disorder which led him to neglect almost completely his clients’ business while at the same time assuring them that he was attending to it, and who had made himself unavailable even to the trial judge.”29

Upon such “constructive disappearance,” the Court reversed the Eastern District, finding it established extraordinary circumstances resulting in extreme hardship to defendants.

Also in its decision, the Court was mindful of and distinguished the United States Supreme Court in Link v. Wabash Railroad Co.,30 supra, which held that a dismissal of a petitioner’s claim stemming from unexcused conduct of his attorney is not an unjust penalty on the client as petitioner voluntarily chose counsel as his representative.31 According to the Second Circuit, the Supreme Court also noted no indication that counsel’s absence at the pretrial conference in Link was anything other than deliberate or the product of neglect, which was not the case in Cirami where the failure of counsel therein was due to mental illness.32 Furthermore, the Court noted that Link was not a Rule 60 (b) case, as was Cirami.33 Considering the foregoing, for “constructive disappearance” to be extraordinary circumstances, Cirami appears to require evidence of a mental defect explaining counsel’s failure to prosecute; however, there are several District Court cases that suggest otherwise.

Neither Mental Illness Nor Medical Evidence Needed For Constructive Disappearance In Ituarte v. Chevrolet Motor Division,34 supra, the Eastern District of New York granted Plaintiff’s Rule 60 (b) motion citing Cirami, supra, and in Benhil Shirt Shops, Inc., v. Lynns Inc.,35 discussed infra, the Southern District of New York did the same. In Ituarte, Plaintiff’s counsel failed to respond to outstanding discovery requests and violated different Orders of the Court.36 Later, in response to a Motion for Summary Judgment, he cross-moved to vacate a prior Order of Preclusion pursuant to Rule 60 (b).37 In his Affidavit, Plaintiff’s counsel claimed only “‘a dairying [sic] and clerical error[.]'”38 Even though he claimed no mental deficiencies in his Affidavit, the Court received a letter from his psychoanalyst claiming that his “behavior was the product of depression and anxiety due to the disintegration of his law partnership.”39 Still, no medical Affidavits were submitted to the Court. Noting that medical evidence is not required to grant a Rule 60 (b) Motion, the Eastern District did just that.40

Benhil Shirt Shops, Inc., goes even further than Ituarte, supra. While Plaintiff’s counsel in Ituarte, above, claimed no mental illness to explain his behavior to the court, his psychoanalyst did send a letter to the Court citing his depression and anxiety. In Benhil Shirt Shops, Inc., however, there is no claim of mental illness. There, defendant’s Motion for Summary Judgment was granted in the U.S. Bankruptcy Court for the Southern District of New York and Benhil appealed, yet their counsel never filed its brief.41 Later and after changing counsel, Benhil brought a Motion for Reconsideration, which was treated as a Rule 60 (b) Motion.42

Benhil’s motion included absolutely no medical Affidavits at all regarding the actions or any mental illness of their former counsel.43 In his Affidavit, Plaintiff’s former counsel proclaimed only that “for reasons he could not explain, he became confused and disoriented, and as a result failed to timely pursue Benhil’s appeal. [He] also alluded to having family problems.”44 Moreover, he admitted to committing an “egregious error” in failing to timely move for an extension to file the appeal.45

In its rationale, the Southern District cited Cirami, supra, noting the similar facts that Plaintiff’s counsel in that case had not performed his duties and concealed such from his supervisors and client.46 Even more, the Benhil Court held that “[a]lthough we have been presented with no medical evidence or documentation that Plaintiff’s former counsel was or is suffering from a psychological impairment or physical illness, the lack of such information is not fatal to the present motion.”47 In fact, the Court concluded that “[i]t does not require medical expertise to know that when a competent veteran attorney suddenly fails to perform, and covers up his non-performance by lying to his clients and his colleagues, something is obviously wrong with him.”48 Accordingly, the judgment was vacated.

Similarly, but with even less stringent criteria, the Court in Azzonlini v. Marriot International, Inc.,49 vacated a prior judgment pursuant to Rule 60 (b) (6). In that case, the Court merely highlighted the fact that Plaintiff’s former counsel completely failed to “attend to his obligations” to oppose defendant’s Summary Judgment motion and that “the case [was] not frivolous.”50 It noted that the foregoing, accompanied with “subsequent attempts to conceal it…amount to a constructive disappearance” of the attorney,51 and “[a] medical evaluation of plaintiff’s former counsel is not necessary to show that something was obviously wrong with him.”52

Given these cases, there appears to be no requirement to demonstrate that prior counsel suffered from a mental illness or mental problems during the course of her representation of Plaintiff in order to establish constructive disappearance satisfying extraordinary circumstances and succeeding on a Rule 60 (b) (6) motion. Therefore, while the avenue of success on such a motion is rather small and narrow, it, nonetheless, exists and simultaneously provides a sliver of hope to those litigants who have been functionally deserted by their attorneys.

Terrence L. Tarver is an Associate at the law firm of Sullivan Papain Block McGrath & Cannavo P.C. He concentrates on personal injury law.

1. Fed Rules Civ Pro rule 60 (b).
2. Vega v. United States, 2008 WL 4104684, *3 [ED NY 2008] citing Mendell, on Behalf of Viacom, Inc. v. Gollust, 909 F2d 724, 731 [2d Cir 1990].
3. Boehner v. Heise, 2009 WL 1360975, *4 [SD NY 2009] (internal quotation marks and citations omitted).
4. United States v. Cirami, 563 F2d 26, 32, 24 FedRServ2d 205 [2d Cir 1977]; The other grounds include the following: (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. Fed Rules Civ Pro rule 60 (b). These other grounds of relief are outside the scope of this article.
5. Cobos v. Adelphi University, 179 FRD 381, 389 [ED NY 1998].
6. See Fed Rules Civ Pro rule 60 (b). For purposes of this article, it will be assumed that these criteria have been met; for, what constitutes a reasonable time and whether said claim is meritorious is beyond the scope of this article.
7. Cobos, 179 FRD at 388, citing Nurani v. Marissa, 151 FRD 32, 35-36 [SD NY 1993]; see also Cirami, 563 F2d at 34-35.
8. Vega, 2008 WL 4104684 at *3.
9. Cirami, 563 F2d at 30. Whether a final judgment causes an extreme hardship for the litigant and/or the circumstances upon which a it may manifest is beyond the scope of this article. 10. Vega, 2008 WL 4104684 at *3.
11. See generally, Vindigni v. Meyer, 441 F2d 376 [2d Cir 1971].
12. Cirami, 563 F2d at 30. These also would not afford relief under Rule 60 (b) (1). See Abu-Rub v. Jordanian Airlines, Inc., 2009 WL 3152561, *4 [SD NY 2009] citing Samuels v. Northern Telecom, Inc., 942 F2d 834, 837 n. 2 [2d Cir 1991]. Moreover, gross negligence falls outside the realm of Rule 60 (b) (1)’s excusable neglect. See Cobos, 179 FRD at 386, 387.
13. Cobos, 179 FRD at 388; see also Nurani, 151 FRD at 34.
14. Vega, 2008 WL 4104684 at *3, citing Harris v. United States, 367 F3d 74, 80 [2d Cir 2004].
15. Ituarte v. Chevrolet Motor Division, 1989 WL 10562, *4 [EDNY 1989] (citations omitted).
16. 367 F.3d 74, 58 FedRServ3d 406 [2d Cir 2004].
17. Id. at 81.
18. 370 US 626, 82 SCt 1386 (1962).
19. Id. at 80. See also generally, Abu-Rub v. Jordanian Airlines, Inc., 2009 WL 3152561 [SD NY 2009] and Blazina v. Port Authority of New York and New Jersey, 2009 WL 1097322 [SD NY 2009].
20. Cirami, 563 F2d at 32.
21. Cobos, 179 FRD at 388.
22. Cirami, 563 F2d at 32
23. Cirami, 563 F2d at 34.
24. Id. at 33. The first case is often referred to as Cirami I and the second, Cirami II.
25. Id. at 30.
26. Id. at 34.
27. Id. at 33. 28. Id. at
31. 29. Id. at 34. 30. 370 U.S. 626, 82 SCt 1386 [1962].
31. Cirami, 563 F2d at 34.
32. Id.
33. Id.
34. 1989 WL 10562 ([ED NY 1989].
35. 87 BR 275 [SD NY 1988].
36. Ituarte, 1989 WL 10562 at *2-*3.
37. Id. at *2.
38. Id.
39. Id.
40. Id. at *4 (citing Benhil Shirt Shops v. Lynns Inc., 87 Bankr 275 [SD NY 1988], discussed infra.)
41. Benhil Shirt Shops v. Lynns Inc., 87 Bankr 275, 276 [SD NY 1988].
42. Id.
43. Id. at 277.
44. Id.
45. Id.
46. Id. at 278.
47. Id. (emphasis added); see also Perdue v. Batterman, 1994 WL 74995 [SD NY 1994], where the Court relies on Cirami, supra, to grant a Rule 60 (b) (6) motion with absolutely no evidence of a mental disorder or problems and holding that such is not fatal because the outcome was just as devastating for the client as it was for Cirami when his attorney constructively disappeared.
48. Id.; see also Nurani, 151 FRD at 35.
49. 2004 WL 360448 [SD NY 2004].
50. Id.; Also, an attorney minimally attending his obligations will not meet this standard. See Harris, supra.
51. Id. (citing Cirami and Nurani, supra).
52. Id. (citing Nurani, supra.)