Plaintiff's response attaches what is labelled 1

"Affidavit of Jennifer Klaske." This signed "affidavit" is not

notarized, sworn to, or even dated, see Pl.'s Resp. Ex. C,

thereby making it inadequate under Fed. R. Civ. P. 56(e). See

Adickes v. S. H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)

(unsworn statement did not meet the requirements of Fed. R. Civ.

P. 56(e)). The only other exhibits appended to plaintiff's

response that were not included with defendants' motion are: (1)

an e-mail exchange of July 8, 2003 mentioning Klaske as a

candidate for the IMF job and setting up an interview time, see

Pl.'s Resp. Ex. A; and (2) some additional pages from Spherion's

Policy Manual, see id. Ex. B. None of the information provided

in these exhibits alters the analysis set forth at length in our

(continued...)

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JENNIFER KLASKE : CIVIL ACTION

:

 v. :

:

SPHERION CORP., et al. :

: NO. 05-5121

MEMORANDUM

Dalzell, J. May 12, 2006

On November 22, 2005, we issued a scheduling order for

this case in which we required the parties to file any motions

for summary judgment by March 22, 2006, and any responses thereto

by April 5, 2006. See Order of Nov. 22, 2005 ¶¶ 2-3. Defendants

filed a timely motion for summary judgment. Plaintiff did not

respond by April 5, 2006 or at any later date, nor did she file a

motion for enlargement of time to respond. 

On May 11, 2006, more than five weeks after plaintiff's

response was due, we granted summary judgment in favor of

defendants. Plaintiff then filed a "motion for reconsideration

of defendants' motion for summary judgment," attaching a brief in

support of her motion and a brief in opposition to defendants'

motion. We now consider the motion for reconsideration, and do 1

Case 2:05-cv-05121-SD Document 39 Filed 05/12/06 Page 1 of 6
(...continued) 1

May 11, 2006 Order. Accordingly, even if we considered Klaske's

response, she has failed to raise a genuine issue of material

fact, and so summary judgment for defendants would remain

appropriate.

2

so at some length given counsel's eyebrow-raising contentions.

Defendants served their motion for summary judgment

upon plaintiff electronically. See Def.'s Mot. for Summ. J.

Certificate of Serv. Plaintiff's counsel claims he was unaware

that defendants attempted this service, and that he "was not

under the belief that it has ever agreed to accept service

electronically." Pl.'s Mot. ¶ 3. 

We draw counsel's attention to the "Electronic Case

Filing (ECF) Account Registration Form," dated November 14, 2005,

that he signed. Paragraph three states:

In accordance with the provisions of Rule

5(b)(2)(D) of the Federal Rules of Civil

Procedure and Section 7 of the ECF Procedural

Order, I agree that service may be given to

me by electronic transmission and I consent

to make electronic service of all documents.

See Letter of Nov. 15, 2005 from counsel to Clerk of Court,

attaching copy of on-line application dated Nov. 14, 2005. Given

this express language, we fail to understand how a member of the

Bar could harbor any confusion -- or contrary "belief" --

regarding electronic service. 

Moreover, counsel was apparently aware of defendants'

motion by March 30, 2006 at the latest, since he e-mailed

defendants' counsel asking if they would serve him with the

motion. See Pl.'s Mot. Ex. A. Defendants' counsel responded to

this e-mail four minutes after she received it, stating that

Case 2:05-cv-05121-SD Document 39 Filed 05/12/06 Page 2 of 6
 Fed. R. Civ. P. 60(b)(2) permits a court "[o]n motion 2

and upon such terms as are just, . . . [to] relieve a party . . .

from a final judgment, order, or proceeding for . . . (2) newly

(continued...)

3

defendants had served the motion and that she would figure out

what had happened and send another copy that day. See id. 

Despite his express agreement to electronic service on

November 14, 2005, plaintiff's counsel complains that defendants

never served a hard copy of their motion. See id. ¶ 5. He

represents to us that he was "unable to open the Motion and view

it on or before the April 5, deadline in the scheduling order." 

Id. ¶ 6. He further claims that he "filed the paperwork after

April 5 so that he could access the documents," and only "[a]fter

overcoming technological difficulties" was he "able to open and

review the Motion and attachments on or about April 12, 2006." 

Id. Given that counsel completed the ECF Form on-line on

November 14, 2005, and mailed it to the Clerk of Court the next

day, we are mystified by his purported inability to access any

document five months later. 

In a final attempt to excuse his gross tardiness,

counsel declares that he "erroneously diaried the response to the

Motion as being required on May 12, 2006." Id. ¶ 7. Counsel

does not bother to mention our November 22, 2005 scheduling

order, which explicitly set a response date of April 5, 2006.

Based on this tale of purported lack of service,

problems with the electronic docketing system, and a mistaken

notation about the response due date, counsel asks us to set

aside our judgment under "F.R.C.P. 60(b)(2)." Id. ¶ 12. He 2

Case 2:05-cv-05121-SD Document 39 Filed 05/12/06 Page 3 of 6
(...continued) 2

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b)." 

Since this subsection of Rule 60 does not apply here, we shall

assume plaintiff's attorney meant to refer to Rule 60(b)(1),

which allows us to grant relief for "mistake, inadvertence,

surprise, or excusable neglect."

4

apparently expects us to accept that, notwithstanding our

scheduling order and Loc. R. Civ. P. 7.1(c), he thought the

response was due more than seven weeks after the motion was filed

and one week before arbitration was scheduled in this case.

On this record, there is no evidence of "mistake,

inadvertence, surprise, or excusable neglect." Fed. R. Civ. P.

60(b)(1). As Wright & Miller summarize the jurisprudence under

this part of the Rule,

[R]elief will not be granted under Rule

60(b)(1) merely because a party is unhappy

with the judgment. Instead the party must

make some showing of why he was justified in

failing to avoid mistake or inadvertence. 

Gross carelessness is not enough. Thus,

relief has been denied based on the

attorney's careless actions in misplacing

papers in an office move, failing to discover

service of process, mistakes in office

procedures, failing to read a proposed

settlement, losing track of time, or when the

oversight was due to the "demands of being a

busy lawyer." Ignorance of the rules is not

enough, nor is ignorance of the law.

11 C. Wright, A. Miller, & M. Kane, Federal Practice and

Procedure § 2858, pp. 276-80 (2d ed. 1995) (footnotes omitted). 

Against this jurisprudence, plaintiff's plea for Rule 60(b)(1)'s

grace is hopeless.

Counsel was admittedly aware of our scheduling order of

November 22, 2005 and the motion filed on March 22, 2006. Even

Case 2:05-cv-05121-SD Document 39 Filed 05/12/06 Page 4 of 6
 Besides being mindful of formal, written commitments 3

he has filed with the Court, counsel should read, mark, learn,

and inwardly digest Rule of Professional Conduct 3.3(a).

5

if we put aside our incredulity and accepted his representation

that he did not view defendants' motion until April 12, 2006,

there remains no excuse for him waiting one month to respond, and

only after we rendered an eighteen-page decision.

On the record before us, counsel's professions of

confusion about electronic service ring false. He agreed to a

document that in simple English unqualifiedly committed him to

accept service "by electronic transmission." Defendants could

conclusively rely on this commitment when they properly rendered

electronic service to him. Counsel did not make a simple mistake

about deadlines. He ignored our Order and the Local Rules until

it was convenient for him to file a response. 

To grant relief based on the incredible excuses we have

here would open the door to litigants to file motions and

responses whenever it suited them. Courts cannot allow such

whims from anyone, much less from members of the Bar. To do 3

otherwise would be to invite chaos. 

Plaintiff is thus the least likely candidate for relief

under Fed. R. Civ. P. 60. We therefore deny the motion.

BY THE COURT:

/s/ Stewart Dalzell, J. 

Case 2:05-cv-05121-SD Document 39 Filed 05/12/06 Page 5 of 6
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JENNIFER KLASKE : CIVIL ACTION

:

 v. :

:

SPHERION CORP., et al. :

: NO. 05-5121

ORDER

AND NOW, this 12th day of May, 2006, upon consideration

of plaintiff's motion for reconsideration of defendants' motion

for summary judgment (docket no. 35), and for the reason set

forth in the accompanying Memorandum, it is hereby ORDERED that

plaintiff's motion is DENIED.

BY THE COURT:

/s/ Stewart Dalzell, J. 

Case 2:05-cv-05121-SD Document 39 Filed 05/12/06 Page 6 of 6