United States District Court, W.D. Virginia, Danville Division
Glen E. Conrad Senior United States District Judge
Ward, Lori Berrios, Melanie Belote, and Amie Hodges Young
filed this action against the Pittsylvania County Board of
Supervisors, the Board of the Pittsylvania County Department
of Social Services, and multiple individual defendants,
asserting a variety of claims related to their employment
with the Department of Social Services. The defendants moved
to dismiss the plaintiffs' amended complaint under Rule
12(b)(6). Approximately two weeks before the hearing on the
defendants' motions, the plaintiffs, by counsel, moved to
voluntarily dismiss the action with prejudice. The court
granted the motion on March 6, 2019. Ward and Berrios have
since requested reconsideration on the basis that the motion
for voluntary dismissal was filed without the plaintiffs'
consent. The court construed the request as a motion for
relief from judgment under Federal Rule of Civil Procedure
60(b). The motion has been fully briefed and is ripe for
review. For the following reasons, the motion will be denied.
60(b) of the Federal Rules of Civil Procedure permits parties
to seek relief from a final judgment, order, or proceeding.
"The remedy provided by the Rule, however, is
extraordinary and is only to be invoked upon a showing of
exceptional circumstances." Compton v. Alton S.S.
Co., 608 F.2d 96, 102 (4th Cir. 1979). To obtain relief
under Rule 60(b), the moving parties must first show (1) that
the motion is timely, (2) that they have a meritorious claim
or defense, and (3) that the opposing parties will not suffer
unfair prejudice if the judgment is set aside. United
States v. Welsh, 879 F.3d 530, 533 (4th Cir. 2018). The
moving parties must also satisfy one of six enumerated
grounds for relief set forth in Rule 60(b). Id. The
six grounds are as follows:
(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;
(6) any other reason that justifies relief.
Civ. P. 60(b).
review of the record and the parties' arguments, the
court concludes that Ward and Berrios are not entitled to
relief under Rule 60(b). First, Ward and Berrios have failed
to give the court reason to believe that vacating the
dismissal order will not be an empty exercise. See
Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir. 1990)
("Under all the provisions of Rule 60(b), a threshold
condition for granting the relief is that the movant
demonstrate that granting that relief will not end in the end
have been a futile gesture, by showing that she has a
meritorious defense or claim."). The defendants
previously identified multiple deficiencies in their
respective motions to dismiss under Rule 12(b)(6). The
defendants cite to the same deficiencies in response to the
pending motion. In reply, Ward and Berrios emphasize that
they are "not willing to give up on [their] case."
Reply 1, Dkt. No. 46. However, they make no effort to
demonstrate that they have a meritorious claim against any of
the named defendants. Consequently, their Rule 60(b) motion
fails on this threshold ground. See Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)
("If a conclusory allegation that a claim is meritorious
does not suffice to satisfy the Rule 60(b) precondition, a
fortiori, the absence of any allegation is
inadequate to that end.") (emphasis in original).
court also concludes that the pending motion fails to satisfy
the requirements for any of the six grounds for relief listed
in Rule 60(b). Ward and Berrios argue that their attorney
moved to dismiss the case without their permission, and that
they should not bear the consequences of the attorney's
unilateral decision. Even assuming the truth of this factual
assertion, such conduct on the part of plaintiffs'
counsel does not provide a sufficient basis for relief under
Rule 60(b). "As both the Supreme Court and [the United
Court of Appeals for the Fourth Circuit] have consistently
recognized, a party voluntarily chooses [her] attorney as
[her] representative in the action, and, thus, [she] cannot
later 'avoid the consequences of the acts or omissions of
this freely selected agent.'" Robinson v. Wix
Filtration Corp. LLC, 599 F.3d 403, 409 (4th Cir. 2010)
(quoting Link v. Wabash R.R. Co., 370 U.S. 626,
633-34 (1962)); see also Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship., 507 U.S. 380, 396
(1993) (emphasizing that "clients must be held
accountable for the acts and omissions of their
attorneys"). This is true even if the moving parties
"might have been less than fully informed, knowledgeable
and active participants in the decisionmaking process."
McCurry v. Adventist Health System/Sunbelt. Inc.,
298 F.3d 586, 595 (6th Cir. 2002); see also Universal
Film Exchanges. Inc. v. Lust, 479 F.2d 573, 576 (4th
Cir. 1973) (holding that counsel's "deliberate
decision not to enter an appearance or file an answer
enumerating his client's defenses" did not justify
relief under Rule 60(b)(1)); In re Vioxx Prods. Liab.
Litig. v. Merck & Co., 509 Fed.Appx. 383, 386 (5th
Cir. 2013) (finding unpersuasive the plaintiffs argument that
"dismissal of his case resulted from his counsel's
unresponsiveness and noncompliance with court orders, and
that he should not bear the consequences of his
attorney's alleged incompetence"). While this result
may seem harsh when viewed solely from a client's
perspective, "it has long been held, particularly in
civil litigation, that the mistakes of counsel, who is the
legal agent of [her] client, are chargeable to the client, no
matter how 'unfair' this on occasion may seem."
Pryor v. U.S. Postal Serv., 769 F.2d 281, 288 (5th
Cir. 1985) (citation omitted).
these reasons, the motion for relief from judgment under Rule
60(b) will be denied. The Clerk is directed to send copies of
this memorandum opinion and the ...