Metropolitan News-Enterprise


Monday, June 28, 2010


Page 3


Court: Attorney’s ‘Gross Negligence’ Warrants Relief From Dismissal


By a MetNews Staff Writer


An attorney’s gross negligence constitutes an “extraordinary circumstance” warranting relief from a judgment dismissing the case for failure to prosecute, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Citing San Francisco attorney Charles Spahr’s virtual abandonment of his client, Shelly Lal, in her suit against the California Highway Patrol and two of its officers over the 2005 shooting death of her husband, a three-judge panel reinstated the action.

Judge William A. Fletcher wrote that Spahr’s conduct was the type of circumstance under which Federal Rule of Civil Procedure 60(b)(6) allows relief from a judgment dismissing a case for failure to prosecute under Rule 41(b).

Lal retained Spahr and co-counsel Mark Webb to represent her after her husband, Kamal Lal, was shot and killed by two officers pursuing him for allegedly hitting his wife. Webb withdrew in November 2006, but Spahr continued to represent Shelly Lal.

However, despite his assurances to Lal to the contrary, Spahr—who is currently listed as involuntarily inactive on the State Bar’s website—failed to make initial disclosures after being ordered to do so; failed to meet, confer and participate in a joint case management conference after being ordered to do so; and failed to attend hearings.

When Lal learned that her case had been dismissed for failure to prosecute, she filed a complaint with the State Bar and sought other counsel. She also sought relief from the dismissal under Rule 60(b)(6), but U.S. District Judge Phyllis J. Hamilton of the Northern District of California denied her motion, concluding that Lal had not diligently pursued relief and that her delay prejudiced the defendants.

On appeal, Fletcher said that Lal could not seek review of the dismissal itself because she waited too long, but he agreed that Spahr’s conduct warranted relief under Rule 60(b)(6).

The rule provides that a court “may relieve a party or its legal representative from a final judgment, order, or proceeding for…any other reason that justifies relief.”

Applying the Ninth Circuit’s 2002 ruling in Community Dental Services v. Tani, 282 F.3d 1164, where the court held that an attorney’s gross negligence was a ground for granting a motion for relief from a default judgment, Fletcher pointed out that Spahr, the attorney in Tani, engaged in “obvious” gross negligence, and “deliberately” misled Lal and deprived her of the opportunity to take action to protect her rights.

Jude Richard A. Paez joined Fletcher in his opinion, but Judge Cynthia Holcomb Hall dissented.

Hall opined that Tani did not apply to a dismissal for failure to prosecute and, even if it did, that Hamilton acted within her discretion in denying Lal’s motion.

According to the State Bar’s website, Spahr was ordered inactive Oct. 19, and is currently facing disciplinary charges.

The case is Lal v. State of California, 08-15645.


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