In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1097

KYLER MOJE,

Plaintiff-Appellee,

v.

FEDERAL HOCKEY LEAGUE, LLC,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 C 500 — Sara L. Ellis, Judge.

____________________

ARGUED MAY 29, 2015 — DECIDED JULY 7, 2015

____________________

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. As in Choice Hotels International, Inc. v. Grover, No. 14-3294, also decided today, the defendant’s lawyer failed to file essential documents, leading 

to the entry of a default judgment, and the defendant wants 

another shot at litigation.

Kyler Moje, playing for the Danville Dashers of the Federal Hockey League, one of the minor leagues in professional 
2 No. 15-1097

hockey, lost an eye to high-sticking during a game against

the Akwesasne Warriors. He sued Oakley, Inc., which made 

the visor that Moje blames for offering inadequate protection, and the League itself. Instead of notifying its liability 

insurer and letting it defend the tort suit, the League hired 

John A. LoFaro, of Syracuse, New York. LoFaro promised to 

represent the League’s interests but did not do so.

The League learned about potential trouble a month after 

the suit began, when Oakley’s attorney called Dan Kirnan, 

the League’s President, to ask why it had not filed an answer 

to the complaint. Kirnan asked LoFaro what was up, and 

LoFaro said that an answer had been filed. He sent the 

League a purported copy. The court’s docket did not reflect 

any filing, however, and Moje asked the judge to enter a default. LoFaro did not respond—nor did he do anything after 

the district court entered the default and permitted Moje to 

prove up his damages. On June 11, 2014, four months after 

the suit began, the district court entered a final judgment of 

$800,000 against the League. Kirnan maintains that he first 

learned about this in October 2014, after Moje commenced 

collection proceedings. At last Kirnan notified the League’s 

insurer, which undertook to defend under a reservation of 

rights (the League’s delay in notification, and the entry of a 

final judgment, had an obvious potential to prejudice the insurer). In December 2014 a lawyer hired by the insurer entered an appearance for the League and filed a motion under 

Fed. R. Civ. P. 60(b)(1) to set aside the judgment. The district 

court’s denial of that motion led to this appeal.

As in Choice Hotels, a lawyer failed to mount a defense of 

the suit, a default judgment was entered, and the district 

court denied a Rule 60(b) motion. In Choice Hotels the motion 
No. 15-1097 3

was filed more than a year after judgment and so depended 

on Rule 60(b)(6), the catchall section, which limits relief to 

extraordinary circumstances. In this case, by contrast, the 

motion was filed only six months after judgment and so 

could invoke Rule 60(b)(1), which allows relief on account of 

“mistake, inadvertence, surprise, or excusable neglect”. The 

League maintains that “excusable neglect” led to the default 

judgment. The district court saw “neglect” but did not think 

it “excusable.” LoFaro has never offered an explanation for 

the combination of inaction and deceit. (To be more precise, 

LoFaro has never been called on to explain his conduct. We 

are reporting the League’s allegations, but LoFaro may not 

agree with its description. As far as we can tell the League 

has not filed a complaint with the legal-ethics panel in New 

York—but LoFaro is not in good standing anyway, as he has 

failed to pay his dues.)

The League wants us to bypass the question whether LoFaro’s conduct is excusable and concentrate on its own 

knowledge and conduct. Yet the Supreme Court held in Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 

U.S. 380, 396–97 (1993), the leading decision on the meaning 

of “excusable neglect” in federal procedure, that a lawyer’s 

errors are imputed to the client for the purpose of this 

phrase. To obtain relief, the Court held, a litigant must show 

that both its own conduct and its lawyer’s fit the category of 

“excusable” neglect.

Usually this concentrates attention on counsel, for most 

errors will be chalked up to counsel alone. There is one potentially important exception to this norm, however. As the 

Supreme Court discussed in Maples v. Thomas, 132 S. Ct. 912, 

922–23 (2012), and we repeated in Choice Hotels, a lawyer’s 
4 No. 15-1097

abandonment of the client ends the agency relation. Abandonment leaves the client responsible for its own conduct, 

but not for the lawyer’s—and then the question becomes

whether the litigant’s conduct constituted excusable neglect.

To simplify matters we shall assume that LoFaro promised to represent the League yet abandoned his client. That 

leaves the question whether the League has shown its own

excusable neglect. Pioneer gives an expansive definition to 

“neglect,” a word that it held to include negligence, see 507 

U.S. at 387–95. With respect to “excusable,” the Court wrote:

the determination is at bottom an equitable one, taking account 

of all relevant circumstances surrounding the party’s omission.

These include ... the danger of prejudice to the debtor, the length 

of the delay and its potential impact on judicial proceedings, the 

reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in 

good faith.

Id. at 395 (footnote omitted). The open-ended nature of these 

factors means that appellate review is deferential. In re Canopy Financial, Inc., 708 F.3d 934, 936 (7th Cir. 2013); Milwaukee 

Branch of the N.A.A.C.P. v. Thompson, 116 F.3d 1194, 1197 (7th 

Cir. 1997).

The thin record that the League built in the district court 

does not compel a ruling in its favor. Two things dominate: 

first, the League failed to tender the defense of Moje’s suit to 

its insurer when it received the complaint; second, the 

League failed to act prudently after being alerted by Oakley 

that there was a problem.

Instead of turning to its insurer, which any sensible business should have done, it hired LoFaro. Why? The only reason the League has given is that he had provided satisfacto-
No. 15-1097 5

ry legal services to Kirnan (and perhaps the League) in earlier years. But what kind of legal services? LoFaro’s web site 

describes his practice as “Personal Injury ~ Criminal Law 

DWI, Speeding, and all Traffic Related Matters”. See 

http://lofarolaw.com. That list of specialties does not imply 

aptitude for the defense of a million-dollar tort suit in Chicago. LoFaro practices in Syracuse, New York, and is not admitted to the bar of the Northern District of Illinois.

Even if he were a wizard of tort defense, why keep the 

insurer in the dark? The League has never offered a reason. 

After a co-defendant told the League that no answer had 

been filed on its behalf, it did not take precautions such as 

notifying the insurer, engaging counsel in Chicago, or checking the district court’s docket (which can be done from any 

desktop computer). A check of the docket would have revealed that LoFaro did not file an appearance as the 

League’s attorney and did nothing to protect its interests. 

Because LoFaro had not filed an appearance, Moje’s lawyer 

would have sent all filings, such as the request for a default 

judgment and his proof of damages, directly to the League, 

which sat on its hands. The League cannot escape a substantial share of the responsibility for the outcome.

Abandoned clients who take reasonable steps to protect 

themselves can expect to have judgments reopened under 

Rule 60(b)(1), but the League is not in that category. Its remedy, if any, is against LoFaro. If he has inadequate (or no) 

malpractice insurance, and cannot satisfy a malpractice 

judgment, that too reflects the League’s choice; it could have 

insisted on proof of adequate coverage. It would be inappropriate to send Moje, who bears no responsibility, back to 

square one of his tort suit.
6 No. 15

-1097

AFFIRMED