Concept
Mistake and Excusable Neglect
Relief from judgment
Mistake and Excusable Neglect
Rule 60(b)(1) lets a court relieve a party from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.”1 It is the first of three grounds that must be raised within a year of judgment, the others being newly discovered evidence and fraud, and it covers errors of the everyday kind: an honest slip by a party or a lawyer that helps produce an adverse judgment.2
Courts read the clause narrowly, and the reason lies in what the one-year grounds represent. They codify well-recognized, concrete exceptions to the finality principle, each reflecting a judgment that in those circumstances the desire for truth and justice outweighs the value of immediate finality.3 Each has been interpreted narrowly so that relief does not encourage sloppy practice during the first trial.4 Were any careless omission open to correction later, every deadline would carry a silent exception, and the first trial would become a rehearsal. The one-year limit guards the other flank, because it assures that finality is postponed, not avoided.5
A movant also starts at a disadvantage in the particular case. The court has broad discretion in granting relief, and courts repeatedly emphasize that Rule 60(b) is not a substitute for appeal, that finality should not be lightly disturbed, that they must protect good-faith reliance on the judgment, and that a movant who asks the court to set the judgment aside in order to litigate again must show a meritorious claim or defense. One treatise puts the point bluntly: the deck is stacked against the motion.6
A clause (1) motion raises four questions, and this section takes them in order: what counts as a mistake, what makes neglect excusable, whose neglect counts when a lawyer is at fault, and why default judgments are treated differently from judgments entered after a contest.
What Counts as Mistake
A slip made in entering a judgment calls for a lighter remedy than clause (1). Errors that result from clerical mistakes, or from an omission or oversight when the judgment was entered, may be corrected by a motion to correct or alter the judgment, which any party may bring and which the court may take up on its own.7 Correction is ministerial: it relieves a party from an erroneous judgment without formally reopening the judgment or retrying the case.8 Clause (1) asks for something larger, an order setting the judgment aside so that the case can be litigated again, and that is why the movant must show a meritorious claim or defense and why the court weighs the interests of the party who won.9
Clause (1) also reaches the court’s own mistakes. In Kemp v. United States, the Supreme Court read “mistake” to include a judge’s legal errors, so a judgment that rests on a trial court’s misreading of the law can fall within the clause. Courts nonetheless treat Rule 60(b) as no substitute for appeal,10 and appellate courts, being courts of review, ordinarily will not hear an error that a party never asked the trial court to correct.11 The trial judge is therefore the first place to complain of the trial judge’s error, and the one-year limit still applies: a loser who waits longer than a year is out of time, however clear the error.12
Errors by the parties and their lawyers are harder to win on, because here the clause’s last words do most of the work. The Supreme Court has said that inadvertence, ignorance of the rules, and mistakes in construing the rules do not usually constitute excusable neglect.13 A lawyer who misreads a plain deadline therefore starts well behind, and the lapse is charged to the client, who is held accountable for the acts and omissions of its chosen counsel.14
An exam stem on this clause usually turns on whose error it was. A judge’s legal error can qualify, a lawyer’s ordinary misreading of a deadline usually will not, and a clerical slip in entering the judgment needs only a correction. Whether a lapse by a party or a lawyer is excusable is a separate question with its own test, which the next part supplies.
The Excusable Neglect Test
The Rule does not say what makes neglect excusable, and the Supreme Court’s answer comes from Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership. Pioneer construed a bankruptcy rule patterned on Civil Rule 6(b), which lets a district court enlarge a period when the omission is the “result of excusable neglect.” The Court read the phrase in light of its use elsewhere in the Civil Rules, including Rule 60(b), so its account carries over to a motion for relief from judgment.18 The inquiry asks two questions: was the failure neglect at all, and if so, was the neglect excusable?
The first question filters out one group of cases. For purposes of Rule 60(b), excusable neglect is understood to include a missed deadline attributable to negligence, so a movant need not show that outside forces caused the omission.19 The converse also holds. Because of the language and structure of Rule 60(b), a failure caused by reasons beyond the party’s control is not considered neglect.20 The bankruptcy rule in Pioneer is broader on this point: an act of God could be excusable neglect there, but it is not neglect under Rule 60(b).21
Klapprott v. United States marks the boundary. The petitioner there had been effectively prevented from taking a timely appeal by incarceration, ill health, and other factors beyond his reasonable control, and the Court found that his allegations set up “an extraordinary situation which cannot fairly or logically be classified as mere ‘neglect’ on his part,” revealing “far more than a failure to defend . . . due to inadvertence, indifference, or careless disregard of consequences.”22 Facts like these belong under clause (6), which demands “extraordinary circumstances” suggesting that the party is faultless in the delay. A party who is partly to blame must instead seek relief within one year under clause (1), and the party’s neglect must be excusable.23 The division also protects the one-year cap: if a party partly at fault could reach the catch-all clause after a year, the limit on clause (1) would mean nothing for the parties it governs.
Once a failure counts as neglect, the question becomes whether it is excusable. Congress supplied no guideposts, so the Court concluded that the determination is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”24 Four considerations anchor that inquiry:
- the danger of prejudice to the other side, which measures what the winner would lose if the judgment were reopened;
- the length of the delay and its potential impact on judicial proceedings, which measures how far the lapse disrupted the court’s work;
- the reason for the delay, including whether it was within the movant’s reasonable control, which measures the movant’s fault; and
- whether the movant acted in good faith, which separates an honest slip from a tactical choice.25
The considerations are weighed together as part of one equitable judgment, and the Court introduced them as matters the inquiry includes, not as separate gates. The word “excusable” carries the deterrent load. Requiring the neglect to be excusable discourages parties from freely ignoring court-ordered deadlines in the hope of winning a permissive reprieve.26 Even so, the concept is a somewhat “elastic concept” and is not limited strictly to omissions caused by circumstances beyond the movant’s control, though inadvertence, ignorance of the rules, and mistakes in construing the rules do not usually qualify.27
The failing side appears in Robinson v. Wix Filtration Corp., which Colleton Preparatory Academy v. Hoover Universal cited for the point that excusable neglect was not established when plaintiff’s counsel made a strategic choice not to monitor the trial court docket and so filed an opposition to summary judgment only after judgment had been entered.28 The cause there was a choice within counsel’s control, which counts heavily against a movant on the reason-for-delay consideration. Colleton also shows how much the stage of the case matters. Courts use similar factors when a party asks to set aside an entry of default under Rule 55(c) for “good cause” and when it seeks relief from a default judgment under Rule 60(b), but excusable neglect is the more onerous standard, because relief from a judgment implicates an interest in “finality and repose” that does not arise when only a default has been entered and no judgment rendered.29
The lapse in that scene is negligence, which Rule 60(b) counts as neglect, so it does not disqualify the motion at the first question. At the second, the delay was brief, the explanation is plausible, the other side has lost nothing, and nothing suggests a tactical motive. The movant is not assured of winning, because inadvertence does not usually qualify, but a court weighing the considerations together has good reason to find the neglect excusable. The contrast with the docket-monitoring decision is the contrast between an accident and a choice.
Attorney Neglect
Rule 60(b)(1) does not say whose neglect counts. Pioneer answers that clients are held accountable for the acts and omissions of their chosen counsel, so the proper focus is whether the neglect of the party and its counsel together was excusable.33 A lawyer’s lapse is therefore judged as the client’s own lapse, and the client cannot present itself as a bystander to its own case.
The Court grounded the rule in United States v. Boyle, which held that a client could be penalized for counsel’s tardy filing of a tax return, and in language from an earlier decision that a client who “voluntarily chose this attorney as his representative in the action” cannot “avoid the consequences of the acts or omissions of this freely selected agent.” Any other approach, the Court said, would be wholly inconsistent with a system of representative litigation in which each party is bound by the acts of its lawyer-agent.34
The rule rests on choice. A party selects its lawyer, and the opposing party has no say in the selection. When a lawyer lets a deadline pass, someone must absorb the cost, and the rule places it on the party who chose the agent rather than on the winner who relied in good faith on the judgment.35 The consequence for the Pioneer inquiry is that the lawyer’s conduct supplies the facts: whether the delay was within reasonable control, the reason behind it, and whether the lawyer acted in good faith.36
That inquiry leaves lawyers little room. Inadvertence, ignorance of the rules, and mistakes in construing the rules do not usually constitute excusable neglect,37 so an ordinary scheduling slip is a weak basis for relief even though negligence counts as neglect. The difficulty lies at the second question, where a lapse within counsel’s own control weighs against excusing it.
Some states depart from this baseline for the worst lapses. A number of them refuse to bind a client to a lawyer’s errors where the lawyer has completely abandoned the client, and a smaller number refuse to bind the client where the lawyer was grossly negligent.38
The abandonment position follows from the agency rationale itself, which assumes that the lawyer is still acting for the client. A lawyer who stops working and says nothing has stopped acting while giving the client no chance to intervene. The gross-negligence position is the more aggressive departure. Neither is the federal baseline set by Pioneer, which charges the client with its counsel’s acts and omissions, so apply them on an exam only when the facts say the jurisdiction follows them.
When the attribution rule applies and the client loses, the fault still belongs to the lawyer, and the claim that redirects the loss to the person at fault is a legal malpractice action seeking compensatory damages. Disciplinary proceedings generally do not award compensatory damages to clients, and client protection funds are limited in scope and do not substitute for a malpractice claim.39
A movant who clears the neglect hurdle faces another. A party who asks the court to set aside a judgment in order to litigate again must show a meritorious claim or defense.40 Pease v. Pakhoed Corp. shows the requirement operating against an abandoned client. The plaintiff had lost a retaliatory-firing claim and blamed his lawyer, who he said had essentially abandoned the case without telling him. The court of appeals recognized that this might have constituted a ground for relief under the excusable-neglect prong of clause (1), but it stated that “[i]t is well established that Rule 60(b) requires the movant to demonstrate that he possesses a meritorious cause of action,” and it agreed with the trial court that the plaintiff had failed to satisfy this “seminal requirement.”41 Abandonment, where it counts at all, is a reason to excuse the lapse. It does not show that reopening would lead anywhere.
Default Judgments
Courts are more willing to set aside a default judgment than a judgment reached after some consideration of the merits, so long as nothing shows willful conduct by the defendant.45 An unpublished Fourth Circuit decision states the preference this way: on a Rule 60(b) motion to set aside a default judgment, “our judicial preference for trials on the merits demands that courts resolve any doubt as to the propriety of giving relief in favor of the moving party.”46 A default judgment records the defendant’s silence rather than a contest, which is why reopening it risks less than reopening a tested result.
A default arises when the defendant fails to plead or otherwise defend within the time the Rules set.47 The court first enters the default under Rule 55(a), and a default judgment may follow, so the two stages are tested by different standards.48 An entry of default may be set aside for “good cause” under Rule 55(c).49 Once a final default judgment has been entered, Rule 55(c) sends the defendant to Rule 60(b), and the judgment may be set aside only in accordance with that rule’s standards.50 Relief from a judgment implicates “finality and repose,” which an entry of default does not, so Rule 60(b)’s excusable-neglect standard is more onerous than Rule 55(c)’s good-cause standard even though courts analyze the two with similar factors.51 Courts must also protect good-faith reliance on the judgment, and that reliance builds only after entry.52
The two standards produce different decisions on similar facts. Park Corp. v. Lexington Insurance Co. reviewed the denial of a Rule 60(b) motion for relief from a default judgment, while Colleton concerned a Rule 55(c) motion to set aside an entry of default, and Colleton took care to say that the difference matters.53 The later case instructs that the Rule 55(c) context requires more leniency from the courts.54
Courts apply similar considerations when deciding whether to set aside a default judgment as when deciding whether to lift an entry of default.55 In practice they ask whether the default was willful, whether the defendant acted diligently once it learned of the suit, whether it has a meritorious defense, and whether the plaintiff would be prejudiced.56 The Fourth Circuit’s Payne decision uses a similar but six-factor test that adds the availability of less drastic sanctions and whether the defendant has a history of dilatory behavior in the case.57
A court will deny relief. The default was a deliberate choice rather than an accident, and without a meritorious defense, reopening would serve only to delay the plaintiff.
Notice problems feed into the same analysis. Evidence that service of process was improper requires that an entry of default be set aside.58 Whether a judgment entered without valid service or jurisdiction is void is a separate question, taken up in the section on void judgments. The harder case is the defendant who was served by the book but never learned of the suit. “Although lack of actual notice may not render the judgment void, it certainly should satisfy the standard for reopening the case.”59 A practical judge is almost always going to grant relief in that situation, even though service was done by the book, because few judges are willing to see a defendant lose the chance to defend a suit she never knew had been filed.60 For the plaintiff, the failure to achieve actual notice therefore more likely leads to delay than to an enforceable judgment, because the defendant will later learn of the action and move to set aside the entry of default or default judgment, and the motion will be granted.61
Lack of notice does not guarantee relief, because the equities can cut the other way. Suppose a quiet-title action ends in a default judgment declaring the plaintiff the owner, and after the judgment the land is sold to a third party who builds a factory on it. Reopening the judgment would upset the legitimate expectations of third parties, and a judge might refuse to do it.62 The result applies a point courts make about every Rule 60(b) motion: good-faith reliance on the judgment must be protected.63