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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SANDRA MCCANDLESS,

Plaintiff,

CASE NO. 08-14195

v. HON. MARIANNE O. BATTANI

COUNTRYWIDE HOME LOANS, INC., and

STANDARD INSURANCE COMPANY, 

a subsidiary of STANCORP FINANCIAL 

GROUP, INC., jointly and severally,

Defendants.

______________________________________/

OPINION AND ORDER DENYING 

PLAINTIFF’S MOTION FOR RELIEF FROM ORDER

I. INTRODUCTION

Before the Court is Plaintiff Sandra McCandless’s Motion for Relief from Order

pursuant to Federal Rule of Civil Procedure 60(b)(1). (Doc. 39). The Court has

reviewed the pleadings and finds that oral argument will not aid in the resolution of this

motion. See E. D. Mich. LR 7.1(e)(1). For the following reasons, Plaintiff’s Motion is

DENIED. 

II. STATEMENT OF FACTS

McCandless commenced this action against Countrywide Home Loans, Inc.

(“Countrywide”), her employer, and Standard Insurance Company (“Standard”),

Countrywide’s long-term disability claims administrator, for termination of her disability

benefits. According to the complaint, she was receiving disability benefits through

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Countrywide while suffering from mental illness and ankylosing spondylitis (AK), an

inflammatory disease of the spine. As administrator of Countrywide’s long-term

disability policy, Standard paid McCandless benefits under the classification of mental

disorder, which allowed her to receive payments for a maximum of 24 months. Had

Standard classified Plaintiff’s disability as physical rather than mental, she would have

been entitled to receive benefits up to the age of 65. After a period of 24 months,

Standard terminated McCandless’s disability benefits, though she continued to suffer

from AK. 

In Counts I and II of the Second Amended Complaint, McCandless sought relief

pursuant to § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974

(“ERISA”) for denial of her disability benefit payments. (Doc. 33 at 3-5). In Counts III

and IV of the complaint, McCandless sought relief pursuant to § 502(a)(3) of ERISA for

breach of fiduciary duty. (Id. at 5-8). Counts I and III were brought against Standard

alone, while Counts II and IV were brought against Countrywide. 

On May 27, 2009, this Court held a hearing on Defendants’ Motion to Dismiss

Counts III and IV of the complaint. (Doc. 22). During oral argument, Plaintiff’s counsel,

Richard Dimanin, conceded that Countrywide was not the party responsible for

terminating Plaintiff’s disability benefits:

MR. DIMANIN: Your Honor, I'll be very, very short and succinct. The

misrepresentation in this case, and I did claim in the complaint that she

was given disability benefits for both AK and depression. So this isn't

something new; it is in the pleadings. And as such, the claim that if she

had been as represented, if she was receiving benefits for her AK, to stop

them without any reason whatsoever and put the burden on her is

fundamentally unfair. It should be, if she is receiving benefits for the 

AK . . . .

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THE COURT: But what about Countrywide, the employer? They didn't

make any alleged misrepresentation.

MR. DIMANIN: No. Well, we found out later on. Now we have with the

second amended complaint, though, we have them firing her.

THE COURT: Well, I understand that, but what about keeping them in for

the first, for counts two and four?

MR. DIMANIN: I concede their point on that, but with Standard I believe

that they should be made to answer three and four.

THE COURT: Okay. Rebut.

MS. HERRING: I've got nothing to add, Your Honor.

THE COURT: Okay. It appears to me in this case that 502(a)(1)(B) applies

to Standard, and that because it does apply and because plaintiff can get

the relief that she is seeking under 502(a)(1)(B), that 502(a)(3) is barred

under Sixth Circuit and Supreme Court precedent. The Court will issue an

opinion with this holding shortly. But I do want to just make clear, you

concede that the employer is not the one who made the decision. So as to

count two and four it could be dismissed against the employer outright. 

You concede that, is that correct, counsel?

MR. DIMANIN: Yes.

THE COURT: Okay. I just want to make sure . . . . 

(Hr’g Transcript at 9-11) (emphasis added). Counsel thus agreed to dismiss Counts II

and IV of the complaint. (Id.). On June 2, 2009, the Court granted Defendants’ Motion

to Dismiss Counts III and IV of the complaint. (Doc. 37). The Court also found that

Dimanin conceded dismissal of Counts II and IV, and therefore dismissed Counts II, III

and IV. (Id.). 

On June 4, 2009, McCandless submitted a Motion for Relief from Order pursuant

to Federal Rule of Civil Procedure 60(b)(1), claiming that counsel’s difficulty in hearing

and/or understanding the discussion during oral argument caused him to unknowingly

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agree to the dismissal of Counts II and IV of the complaint. (Doc. 39 at 1-3). Dimanin

explained that he failed to inform the Court of his hearing difficulties because he feared

embarrassment and the appearance of impropriety. (Pl.’s Mot. at 2). Plaintiff’s counsel

submitted an affidavit describing his failing ability to hear, as well as his future plans to

seek medical aid for the condition. (Aff. at 1-2). According to the affidavit, Dimanin had

been experiencing difficulties in hearing and understanding speech, especially in large

rooms, over the preceding six months. (Id. at 1). 

McCandless requests relief from the order dismissing Counts II and IV, or at a

minimum prays that Countrywide be required to defend itself on Count II of the

complaint. (Pl.’s Mot. at 3). 

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 60(b)(1) provides the Court with the discretion to

relieve a party or its legal representative from an order on the grounds of mistake,

inadvertence, surprise, or excusable neglect. FED. R. CIV. P. 60(b)(1). The Sixth Circuit

has defined two situations in which Rule 60(b)(1) may provide relief: “(1) when a party

has made an excusable mistake or an attorney has acted without authority, or (2) when

the judge has made a substantive mistake of law or fact in the final judgment or order.” 

United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002). Under the first category of

relief, “a party must first demonstrate excusable neglect before other factors such as

whether a defendant has a meritorious defense and prejudice to the plaintiff will be

considered.” Id. at 456. 

It is well established that counsel’s “inadvertent mistake” and “gross

carelessness,” are insufficient grounds for relief under Rule 60(b)(1). FHC Equities v.

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MBL Life Assurance Corp., 188 F.3d 678, 685 (6th Cir. 1999). Indeed, “a court would

abuse its discretion if it were to reopen a case under Rule 60(b)(1) when the reason

asserted as justifying relief is one attributable solely to counsel’s carelessness or

misapprehension of the law or the applicable rules of court.” Id. (quoting Edward H.

Bohlin Co. v. Banning Co., 6 F.3d 350, 356-57 (5th Cir. 1993)). Further, “clients must

‘be held accountable for the acts and omissions of their chosen counsel.’” Allen v.

Murph, 194 F.3d 722, 724 (6th Cir. 1999) (quoting Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 396-97 (1993)).

IV. ANALYSIS

Counsel’s alleged hearing impediment provides insufficient grounds for this Court

to grant relief under Rule 60(b)(1). Dimanin attributes his concession to dismiss Counts

II and IV of the complaint to his alleged hearing infirmity. Counsel maintains that his

infirmity entitles him to relief for mistake, inadvertence, or excusable neglect. See FED.

R. CIV. P. 60(b)(1). “Although the court may consider counsel’s illness, regardless of its

seriousness, illness alone is not a sufficient basis for setting aside a judgment under

Rule 60(b)(1). Carcello v. TJX Companies, Inc., 192 F.R.D. 61, 64 (D. Conn. 2000)

(citing Andree v. Ctr. for Alternative Sentencing and Employment Services, Inc., et al.,

No. 92-616, 1993 WL 362394, at *2-3 (S.D.N.Y. Sept. 14, 1993)). The only additional

justification Dimanin offers for his actions is his fear of embarrassment or appearing

impolite. Neither of these perceived fears demonstrates excusable neglect such that

the Court should abandon its Opinion and Order. 

Furthermore, Counsel became aware that his ability to hear was deteriorating

approximately six months prior to appearing in Court on behalf of McCandless. (Aff. at

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1). Dimanin failed to apprise the Court and opposing counsel of his condition in order to

avoid any potential mistake or neglect. See Andree, No. 92-616, 1993 WL 362394, at

*2-3. Such conduct is akin to “gross carelessness,” which is insufficient grounds for

relief under Rule 60(b)(1). See FHC Equities, 188 F.3d at 685. 

During the motion hearing, the Court was explicit in verifying that Dimanin was

willing to dismiss Countrywide from Counts II and IV of the complaint. (Hr’g Transcript

at 11). The Court provided Dimanin the opportunity to clarify his concessions regarding

Countrywide’s involvement in the case, and he unmistakably agreed “that the employer

[was] not the one who made the decision.” (Id.). Counsel alleges that he was

distracted during this juncture of the hearing when he began gathering his notes and

either did not hear or misunderstood the Court’s question. (Pl.’s Supplemental Br. at 3). 

Rather than asking the court to repeat or explain the question, counsel unequivocally

affirmed dismissal of Plaintiff’s claims against Countrywide. (Hr’g Transcript at 11).

Rule 60 “was not intended to relieve counsel of the consequences of decisions

deliberately made, although subsequent events reveal that such decisions were

unwise.” Federal’s Inc. v. Edmonton Inv. Co., 555 F.2d 557, 583 (6th Cir. 1977). 

Furthermore, a client may not “avoid the consequences of the acts or omissions of this

freely selected agent. Pioneer Inv. Servs. Co., 507 U.S. at 397 (quoting Link v. Wabash

R. Co., 370 U.S. 626, 633-34 (1962)). After all, “[a]ny other notion would be wholly

inconsistent with our system of representative litigation, in which each party is deemed

bound by the acts of his lawyer-agent . . . .” Id.

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 V. CONCLUSION

For the reasons discussed above, McCandless has failed to establish that she is

entitled to relief under Federal Rule of Civil Procedure 60(b)(1). This Court, therefore,

DENIES Plaintiff’s Motion for Relief from Order.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: August 7, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served upon counsel of record on this date by ordinary

mail and/or electronic filing.

s/Bernadette M. Thebolt

DEPUTY CLERK

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