FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 2, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12303

Non-Argument Calendar

________________________

D. C. Docket No. 07-00040-CV-CDL-3

TAKAIYOUS ALLEN, 

Plaintiff-Appellant, 

versus 

THOMAS DOCKERY, JR., 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(October 2, 2008)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
Upon Dockery’s unopposed motion, the discovery deadline was later extended to 1

February 29, 2008.

2

Plaintiff-appellant Takaiyous Allen appeals the district court’s denial of his

motion for reconsideration of the order dismissing his civil rights action. After

review, we affirm.

I. BACKGROUND

A. Allen’s Lawsuit

Plaintiff-appellant Allen filed this action against Defendant-appellee

Thomas Dockery, an Athens police officer, alleging claims under 42 U.S.C.

§ 1983 and state law. At all times in the district court and on appeal, Plaintiff

Allen has been represented by his counsel Jim Smith. A scheduling order set

discovery to expire on December 31, 2007. On November 26, 2007, Defendant 1

Dockery served Allen with interrogatories and requests for production of

documents by hand delivering them to attorney Jim Smith’s office. Allen’s

responses were due December 26, 2007.

On January 2, 2008, after receiving no discovery responses, Defendant

Dockery’s counsel wrote a letter to Plaintiff Allen’s counsel Jim Smith in

compliance with the local rule requiring counsel to confer with opposing counsel

to see if a discovery dispute can be resolved without court intervention (“good
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faith letter”). In the letter, Defendant Dockery’s counsel asked Allen’s counsel to

get in touch with him by January 7, 2008.

When Dockery’s counsel did not hear from Allen’s counsel, on January 11,

2008, he filed a motion for the imposition of sanctions. Allen’s counsel did not

file a response to the motion for sanctions. On February 14, 2008, the district

court granted the motion in a text-only order entered on the docket and

electronically transmitted to all counsel. The district court found that Plaintiff

Allen had failed to respond with Defendant Dockery’s discovery requests “without

justification” and ordered Allen to pay Dockery $1,000 for costs and expenses and

to provide full and complete responses, without objection, by February 22, 2008. 

The district court warned Allen and his counsel that a failure to comply would

result in the dismissal of Allen’s complaint. The district court directed Defendant

Dockery to inform the court whether Allen complied with the court’s order.

On February 22, 2008, Allen’s discovery responses were hand delivered to

Dockery’s counsel, but Allen’s counsel failed to have the interrogatories verified

by Allen or to include a certificate of service for the response to the document

requests. Allen also did not pay Dockery the court-ordered $1,000. On the same

day, Allen’s counsel filed a motion to set aside the sanctions order in which he

argued he had responded to Dockery’s discovery requests, but admitted he had not
Rule 60(b)(3) permits a district court to relieve a party from a judgment for “fraud[,]. . .

2

misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3).

In the motion and brief, Allen contended, inter alia, that Dockery had misrepresented to 3

the district court that Allen had not responded to the discovery requests because Allen had

“substantially complied” with the district court’s order to respond.

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paid the $1,000 because he was incarcerated. Allen’s counsel asked that the

$1,000 “be converted to a judgment without a timeline.” Allen’s counsel did not

address his failure to have the discovery responses verified or to provide a

certificate of service. On February 25, 2008, Dockery advised the district court of

Allen’s partial compliance with the sanctions order.

On February 26, 2008, the district court denied Plaintiff Allen’s motion to

set aside the sanctions order and dismissed Allen’s complaint with prejudice. The

court found that Allen had asserted “no legitimate basis” for setting aside the order

and had “failed to comply with the Court’s previous order by failing to respond

fully to Defendant’s discovery requests and by failing to pay the court ordered

costs incurred by Defendant in having to bring a motion to compel.” A final

judgment also was entered on February 26, 2008 dismissing Allen’s complaint

with prejudice.

B. Post-judgment Motions

On March 7, 2008, Allen’s counsel filed a motion for reconsideration

pursuant to Federal Rule of Civil Procedure 60(b)(3), along with a 26-page brief. 2 3
Local Rule 7.6 of the Middle District of Georgia limits motions for reconsideration to 4

five pages.

Also on March 18, Allen filed certificates of service indicating that he had served 5

Dockery with amended responses to Dockery’s document requests and interrogatories. These

certificates of service were filed as separate pleadings on March 18, which was after the February

5

The district court clerk terminated the March 7 motion for exceeding the page

limits set by local rule, using an incorrect event name when e-filing and failing to 4

include a certificate of service. The clerk instructed Allen to re-file the motion.

On March 10, 2008, Allen’s counsel re-filed the Rule 60(b)(3) motion,

along with a 19-page brief. The district court clerk terminated the March 10

motion for exceeding the page limit and again instructed Allen to re-file the

motion.

On March 18, 2008, Allen’s counsel filed a third motion for relief from the

judgment, this time based on Rule 60(b)(1) and (6). The accompanying five-page

brief acknowledged that Allen’s interrogatory responses were not verified, which

amounted to a defective response. Allen’s counsel argued, however, that Allen

had substantially complied in responding to Dockery’s discovery requests and that

the failure to include a verification or a certificate of service was not made in bad

faith and constituted “excusable neglect.” The basis for counsel’s excusable

neglect claim was “a breakdown in communication and organization which has

been remedied and will not be repeated.” Allen’s counsel asked for the court’s 5
14, 2008 order compelling complete discovery responses and the February 26, 2008 dismissal. 

Thus, at the time of the dismissal, there was still no verification or certificate of service as to the

discovery responses.

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“mercy” and stated that in future there would be “meticulous adherence to the

rules of procedure” and “no further delays.” Allen’s counsel attached to the Rule

60(b) motion: (1) copies of Allen’s discovery responses; and (2) his February 22,

2008 letter to Dockery’s counsel advising, inter alia, that the discovery responses

would be delivered that day and that he was waiting for a signed verification from

Allen, who was incarcerated, and would supplement the responses with the

verification when it was received.

In an April 4, 2008 order, the district court denied Allen’s Rule 60(b)

motion. The district court concluded that “no extraordinary circumstances exist in

this case” and that Allen’s failure to fully comply with the court’s sanction order

“was not due to mistake, inadvertence, surprise, or excusable neglect, and no other

justifiable reason exists for relief.” The district court found that the “drastic

remedy” of dismissal was warranted because “Plaintiff’s counsel’s conduct

demonstrates a pattern of disregard for the rules of this Court and this Court’s

authority to enforce compliance with those rules.” The district court recounted

Allen’s counsel’s history of failing to comply with court rules and orders, as

follows:
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Plaintiff failed to respond to discovery requests served on November 26,

2007. He then failed to respond to Defendant’s counsel’s letter, which

was delivered by Defendant’s counsel pursuant to the Court’s rules that

require parties to try to work out their discovery differences before

burdening the Court with unnecessary motionsfor sanctions. Plaintiff’s

counsel then arrogantly ignored Defendant’s motion for sanctions.

Finally, after the Court granted that motion, Plaintiff failed to comply

with the Court’s order which required Plaintiff to respond fully to the

discovery and pay Defendant $1,000 for his cost and expense in having

to file the motion for sanctions. Now desperate to avoid a final

judgment, Plaintiff’s counsel offers nothing more than pleas for mercy

with a promise that he will follow the Court’s rules in future.

While the district court “sympathize[d] with the Plaintiff’s plight,” it stated that

Allen “bears ultimate responsibility for his choice of counsel.”

Allen filed his notice of appeal on April 29, 3008. This Court dismissed as

untimely Allen’s appeal to the extent it sought review of the district court’s

February 26, 2008 order dismissing his complaint, but permitted his appeal to

proceed as to the April 4, 2008 order denying his Rule 60(b) motion for

reconsideration. Therefore, we address only the district court’s ruling on the Rule

60(b) motion.

II. DISCUSSION

Allen’s motion sought relief from the judgment under subsections (1) and

(6) of Rule 60(b). Rule 60(b) provides that a district court may “[o]n motion and

just terms . . . relieve a party or its legal representative from a final judgment,
We review a district court’s order denying a Rule 60(b) motion for abuse of discretion. 6

Solaroll Shade & Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1131-32 (11th Cir.

1986). To show abuse of discretion, the appellant must demonstrate not only a justification for

relief, but “a justification so compelling that the court was required to vacate its order.” Id. at

1132.

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order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable

neglect . . . [or] (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1),

(6). 

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Relief under Rule 60(b)(6) is available only “upon a showing of exceptional

circumstances.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.

1993). Attorney error does not constitute exceptional circumstances for purposes

of Rule 60(b)(6), and such claims for relief should be raised under Rule 60(b)(1). 

Solaroll Shade & Shutter Corp., 803 F.2d at 1133. Thus, the district court did not

abuse its discretion in denying relief under Rule 60(b)(6).

Given the circumstances presented in this case, we also cannot say that the

district court abused its discretion in denying the Rule 60(b)(1) motion. See

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113

S. Ct. 1489, 1498 (1993); In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295

(11th Cir. 2003). The only reason given for Allen’s failure to comply fully with

the district court’s sanctions order was a vague and summary reference to “a

breakdown in communication and organization.” No declarations or other
On appeal, Allen’s counsel attempts to offer a more detailed explanation for his failures,

7

including attaching exhibits to his appeal brief filed for Allen. Specifically, Allen’s counsel, Jim

Smith, contends that his firm lost its other two attorneys, both of whom also had worked on

Allen’s case. Meanwhile, Smith went on vacation between December 21, 2007 and January 6,

2008, during the time discovery responses were due, and inadvertently failed to file a leave of

absence with the district court. None of these facts or exhibits were before the district court

when it ruled on the Rule 60(b) motion and, thus, we do not consider them. We note, in any

case, that these facts do not explain why Jim Smith failed to respond to Dockery’s good faith

letter by January 7 or to Dockery’s January 11 motion for sanctions or to comply fully with the

district court’s February 14 sanctions order.

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evidence was submitted to support this claim. Nor did Allen elaborate upon what

was meant by such a breakdown. 

7

We agree with the district court that this explanation was insufficient to

support a finding of excusable neglect. This is particularly true when considered

in the context of Allen’s counsel’s other failures to respond to: (1) Dockery’s

discovery requests; (2) Dockery’s good faith letter; and (3) the resulting motion to

compel. Allen’s counsel’s prior conduct was not only dilatory but also nonresponsive over a period of two months in violation of the Federal Rules of Civil

Procedure and the district court’s Local Rules.

We emphasize that this was not just a failure to meet a deadline imposed by

court rules. The deadline Allen missed was imposed by a court order that

explicitly warned Allen that a failure to comply would result in the dismissal of his

case. Furthermore, there is no evidence in the district court record that Allen ever

complied with the district court’s order to pay Dockery $1,000. Indeed, Allen’s
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Rule 60(b) motion did not even address his failure to pay the $1,000, let alone

represent that payment was forthcoming. Given the history of dilatory and nonresponsive conduct during discovery and the failure to pay the $1,000, we cannot

say Allen’s counsel’s vague and conclusory justification was so compelling that

the district court was required to vacate the final judgment.

AFFIRMED.