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Toke v. Russ Hadick & Associates Profit Sharing Plan and Trust

May 26, 2006

RONALD J. TOKE, PLAINTIFF,
v.
RUSS HADICK & ASSOCIATES PROFIT SHARING PLAN AND TRUST, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Thomas M. Rose

ENTRY AND ORDER OVERRULING PACSI'S MOTION TO RE-OPEN (Doc. #73)

This matter is before the Court pursuant to Defendant PACSI's Motion To Re-Open Under Rule 60(b). This motion is fully briefed and now ripe for decision.

PACSI's Rule 60(b) Motion is to reconsider the Court's Entry and Order Striking PACSI's Fee Application (the "Order"). The Order concluded that PACSI is not entitled to sanctions in the form of fees and expenses against Toke and terminated the case. The basis for striking PACSI's fee application was that it was not filed within the time limit established by the Court. PACSI had unsuccessfully argued that its fee application was filed within the time limit set by the Court.

Rule 60(b) provides that a court may relieve a party from a final judgment for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, a judgment that is void, a judgment that has been satisfied or any other reason justifying relief. Fed. R. Civ. P. 60(b). Rule 60(b) also provides that the motion to relieve a party from a final judgment should be made within a reasonable time and gives the movant a maximum of one year for claims of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence and fraud. Id.

Excusable neglect is the reason given by PACSI as to why the Court should grant its Rule 60(b) Motion. In determining whether an action is excusable neglect, courts look to the good faith of the claimant, the extent of the delay and the danger of prejudice to the nonmoving party. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 392 n.10 (1993). By way of example, excusable neglect encompasses situations where the failure to comply with a filing deadline is attributable to negligence, and failure to file on time for reasons beyond the movant's control is not considered to be neglect. Id. at 394.

Rather than arguing, as before, that its fee application was filed within the time limit established by the Court, PACSI now argues in its Rule 60(b) Motion that its fee application was filed one day late due to "excusable neglect," termed a "de minimis good faith mistake" in its Reply Memorandum.*fn1 PACSI also argues that it had complied with all prior guidelines in this matter and it is unjust to now deny its fee application. Finally, in its Reply, PACSI continues its personal criticism of Toke and Toke's Counsel by asserting that Toke's claim for sanctions against PACSI is outrageous.

Toke responds by first pointing out that it took PACSI from February 16, 2006,*fn2 until April 4, 2006, to file its Rule 60(b) Motion. Toke then continues his personal criticism of PACSI and its Counsel. Toke points out that PACSI's Memorandum In Opposition To Plaintiff's Motion To Strike Fee Application is "frought with insults against counsel for Plaintiff." Toke then, in return, presents several criticisms of PACSI's actions with regard to his claim. Toke concludes with the argument that PACSI, not he, should be sanctioned because PACSI caused him considerable expense due to multiple frivolous claims, missed dates, refusal to provide requested documents and continuous refusal to drop the case.

This Court has had to bear the seemingly continuous personal criticisms by and between these Parties throughout the litigation of this matter. With the continuous personal criticisms as a background, this Court labored long and diligently to determine that PACSI was entitled to certain sanctions and that PACSI could submit a fee application by a date certain. But, rather than submitting the fee application early or even submitting it by the date certain, PACSI elected to submit the fee application one day late.

At first, PACSI argued that the Court's determination that its application was late was incorrect. Then, a few days after the Order was entered, PACSI determined that its fee application was in fact late and that it was late due to excusable neglect. The excusable neglect was, according to PACSI, a miscalculation of the time that its fee application was due.

PACSI now argues that "it would be an unreasonable and unjust result to let the current ruling stand." However, what would be unjust and unreasonable would be for the Court to expend any more of its resources on this matter, particularly in light of the time and effort already expended. Therefore, PACSI's Motion To Re-Open is OVERRULED.

DONE and ORDERED in Dayton, Ohio, this Twenty-Sixth day of May, 2006.

THOMAS M. ROSE UNITED STATES ...


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