### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1097

K YLER M OJE , Plaintiff

- Appellee
,

v.

F EDERAL H OCKEY L EAGUE , 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

.

____________________

A RGUED M AY 29, 2015

— D ECIDED J ULY 7, 2015

____________________

Before P OSNER , E ASTERBROOK , and S YKES , Circuit Judges

. E ASTERBROOK , Circuit Judge

. As in Choice Hotels Intern ational, Inc. v. Grover , No. 14

- 3294, al so decided today, the d efendant’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 Fe deral Hockey League, one of the minor leagues in professional2 No. 15

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hockey, lost an eye to high

- sticking during a game against the Akwesasne Warriors . He sue d Oakley, Inc., which made the visor that Moje blames for offering ina dequate prote ction , and the League itself. Instead of notifying its liabilit y insurer and letting it defend the tort suit, the League hired John A. LoFaro
, of Sy racuse, New York . LoFaro promised to represent the League ’s interests but did not do so.

The Le ague learned about potential trouble a month after the suit began, when Oakley’s attor ney 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 d efault. 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 i nsur er). In December 2014 a lawyer hired by the insurer e ntered 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 lawy er 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 motionNo. 15

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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 ne ver 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 goo d standing anyway , as he has failed to pay his dues. ) The League wants us to bypass the question whether L oFaro ’s conduct is excusable and concentrate on its own knowledge and conduct. Yet the Supreme Court held in Pi oneer Investment Services Co. v. Brunsw ick 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 impute d 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 p otentially important exception to this norm, h owever. As the Supreme Court discussed in Maples v. Thomas , 132 S. Ct. 912,
922

– 23 (2012), and we repeated in Choice Hotels , a lawyer’s4 No. 15

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abandonment of the client ends the agency relation. Aba ndonment leaves the client responsible for its own conduct, but n ot for the lawyer’s

— and then the question become s whether the litigant’s conduct constituted excusable neglect. To simplify matters we shall assume that LoFaro pro mised to represent the League yet abandoned his client

. That leaves t he 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 sur rounding 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 reaso nable 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 Can opy 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 it s 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 O akley that there was a problem.

Instead of turning to its insurer, which any sensible bus iness sh o uld have done , i t hired LoFaro. Why? The only re ason the League has given is that he had provided satisfact o-No. 15

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ry legal services to Kirnan (and perhaps the League) in earl ier 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 Chic ago. LoFaro practices in Syracuse, New York, and is not a dmitted to the bar of the Northern District of Il linois.

E ven if he were a wizard of tort defense, why keep the insurer in the dark? The League has never offered a reason. A fter a co

- defendant told the League t hat no answer had been filed on its behalf, it did not take precautions such as notifying the insurer , engaging counsel in Chicago, or chec king the district court’s docket (which can be done from any desk top computer)

. A check of the docket would have r eve aled 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 o f damages, directly to the League, which sat on its hands. The League cannot escape a substa ntial share of the responsibil ity 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 re medy, 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 ch oice; it could have insisted on proof of adequate coverage. It would be ina ppropriate to send Moje, who bears no responsibil ity, back to square one of his tort suit.6 No. 15

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A FFIRMED