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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chena Obstetrics & Gynecology, P.C. et al. v. Lauren Bridges, et al. (1/21/2022) sp-7580

Chena Obstetrics & Gynecology, P.C. et al. v. Lauren Bridges, et al. (1/21/2022) sp-7580

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                   

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                     

          corrections@akcourts.gov.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                   



CHENA  OBSTETRICS  &                                          )  

GYNECOLOGY,  P.C.  and  DALE                                  )                                      

                                                                   Supreme Court Nos. S-17464/17473  

HARDY,  CNM,                                                  )    (Consolidated)  

                                                              )  

                               Petitioners,                   )                                                            

                                                                   Superior Court No. 4FA-17-01308 CI  

                                                              )  

          v.                                                  )                        

                                                                   O P I N I O N  

                                                              )  

LAUREN BRIDGES, on behalf of                                                                             

                                                              )    No. 7580 - January 21, 2022  

S.B., her minor child; and BANNER  

                                                              )  

MEDICAL GROUP d/b/a Fairbanks  

                                                              )  

Memorial Hospital and Tanana Valley  

                                                              )  

Clinic,                                                       )  

                                                              )  

                               Respondents.                   )  

                                                              )  

BANNER MEDICAL GROUP d/b/a  

                                                              )  

Fairbanks Memorial Hospital and  

                                                              )  

Tanana Valley Clinic,  

                                                              )  

                                                              )  

                               Petitioner,                    )  

                                                              )  

          v.                                                  )  

                                                              )  

LAUREN BRIDGES, on behalf of  

                                                              )  

S.B., her minor child; CHENA  

                                                              )  

OBSTETRICS & GYNECOLOGY,  

                                                              )  

P.C., and DALE HARDY, CNM,  

                                                              )  

                                                              )  

                               Respondents.                   )  

                                                              )  


----------------------- Page 2-----------------------

                           Petitions for Review from the Superior Court of the State of                                                            

                           Alaska,   Fourth   Judicial   District,   Fairbanks,   Michael   A.  

                           MacDonald, Judge.   



                           Appearances:     Scott  J.  Gerlach   and   Max   D.   Holmquist,  

                           Jermain Dunnagan & Owens, P.C., Anchorage, for Petitioner                                                

                            and   Respondent   Chena   Obstetrics   &   Gynecology,   P.C.   

                           Howard   A.   Lazar,   Delaney   Wiles   Inc.,  Anchorage,   for  

                           Petitioner   and   Respondent   Dale   Hardy,   CNM.     John   J.  

                           Tiemessen, Clapp Peterson Tiemessen & Thorsness, LLC,                                                            

                           Fairbanks, for Petitioner and Respondent Banner Medical                                   

                            Group d/b/aFairbanks                          MemorialHospital and TananaValley                               

                            Clinic.   Robert John, Law Office of Robert John, Fairbanks,                                          

                            for   Lauren   Bridges,   on   behalf   of   S.B.,   her   minor   child,  

                           Respondent.    



                           Before:     Bolger,   Chief   Justice,   Winfree,   Maassen,   and  

                           Borghesan, Justices.                        [Carney, Justice, not participating.]        



                           BORGHESAN, Justice.   



I.            INTRODUCTION  



                           After Lauren Bridges's daughter S.B. was born severely disabled, Bridges  

                                                                                                                                                                   



sued the many healthcare providers involved in S.B.'s birth.  When Bridges's attorneys  

                                                                                                                                                                



failed to timely oppose the defendants' motions for summary judgment, the superior  

                                                                                                                                                                 



court granted summary judgment and then final judgment in favor of all defendants.  

                                                                                                                                                                                    

Bridges then moved for relief from judgment under Alaska Civil Rule 60(b).1                                                                                               The  

                                                                                                                                                                         



              1            Alaska  Civil  Rule  60(b)  provides,  in  relevant  part:  



                            (b)   On  motion  and  upon  such  terms  as  are  just,  the  court  may
  

                           relieve  a  party  or  a  party's  legal  representative  from  a  final
  

                           judgment,  order,  or  proceeding  for  the  following  reasons:
  



                            (1)  mistake,  inadvertence,  surprise  or  excusable  neglect;   

                                                                                                                                                       (continued...)  



                                                                                      -2-                                                                               7580
  


----------------------- Page 3-----------------------

 superior court found that her attorneys' neglect was inexcusable, precluding relief under                                                                                                                                                                                                                           



 Rule 60(b)(1), but granted relief under Rule 60(b)(6) to avoid injustice. The defendants                                                                                                                                                                                                         



 petitioned this court for review.                                                                                           



                                                    We hold that the superior court did not abuse its discretion in finding the                                                                                                                                                                                                



 neglect of Bridges's counsel inexcusable and denying relief under Rule 60(b)(1).  But                                                                                                                                                                                               



 we   reverse   the   superior   court's   decision  granting   relief   under   Rule   60(b)(6).     An  



 attorney's neglect, whether excusable or inexcusable, cannot be grounds for relief from                                                                                                                                                                                                                                 



judgment under Rule 60(b)(6) unless the attorney abandons the client.                                                                                                                                                                                                          Because that is                                      



 not what the record shows, we reverse the superior court's ruling and remand for entry                                                                                                                                                                                                                                



 of judgment in favor of the defendants.                                                                                                                 



 II.                      FACTS AND PROCEEDINGS                                    



                          A.                        Facts  



                                                    In July 2010 Lauren Bridges gave birth to S.B. at Fairbanks Memorial                                                                                                                                                                            



 Hospital. S.B. was transferred to Providence Alaska Medical Center and diagnosed with                                                                                                                                                                                                                                     

                                                                                                                                        2          During  her  hospitalization  at  Providence,  S.B.  

 hypoxic   ischemic   encephalopathy.                                                                                                                                                                                                                                                                                    

 developed microcephaly.3                                                                                   She now has cerebral palsy, seizures, and developmental  

                                                                                                                                                                                                                                                                                  



 delays.  



                           1                        (...continued)
  



                                                                              . . . .
  



                                                    (6)  any  other  reason  justifying  relief  from  the  operation  of  the  

                                                   judgment.   



                          2                         Hypoxic ischemic encephalopathy is  defined as "generally permanent brain  



 injury  resulting  from  lack  of  oxygen  or  inadequate  blood  flow  to  the  brain."   STEDMAN'S  

 MEDICAL  DICTIONARY  (2014).  



                          3                         Microcephaly   means   "[a]bnormal   smallness   of   the   head."    STEDMAN'S  



 MEDICAL  DICTIONARY  (2014).  



                                                                                                                                                                 -3-                                                                                                                                                     7580
  


----------------------- Page 4-----------------------

            B.          Proceedings  



                                                                         

                        1.          Initial proceedings  



                                                                                                                                                

                        In January 2017 Bridges brought a medical malpractice suit on S.B.'s  



                                                                                                                                                

behalf.   Bridges alleged that negligent care during labor and delivery caused S.B.'s  



                                                                                                                                           

irreversible brain damage and resulting hypoxic ischemic encephalopathy, seizures,  



                                                                                                                                                     

 cerebral  palsy,  and  developmental  delays.                                    Following  procedural  clarifications,  the  



                                                                                                                                                      

named defendants were Dale Hardy, a certified nurse-midwife who had assisted with the  



                                                                                                                                                    

 delivery;  Hardy's  employer,  Chena  Obstetrics  and  Gynecology,  P.C.  (Chena);  and  



                                                                                                                                                

Banner Medical Group d/b/a Fairbanks Memorial Hospital and Tanana Valley Clinic  



 (Banner).  



                                                                                                                                                  

                        Anchorage attorney Michele Power filed the complaint.  In June the court  



                                                                                                                                           

granted permission to appear pro hac vice  on Bridges's behalf to Michigan attorneys  



                                                                                                       4  

                                                                                       

Todd Schroeder, Richard Counsman, and Brian McKeen. 



                                                                           

                        2.          Summary and final judgment  



                                                                                                                                

                                    a.          Hardy and Chena's motion for summary judgment  



                                                                                                                                            5  

                                                                                                                                               Hardy  

                        In May 2018 Hardy, joined by Chena, sought summary judgment. 



                                                                                                                                                      

presented a nurse-midwife's expert opinion that his treatment of Bridges had met the  



                                                                                                                                                  

relevant standard of care.  Bridges did not file a timely opposition, and in June the court  



                                                                                           

granted summary judgment in favor of Hardy and Chena.  



            4           See  Alaska R. Civ. P. 81(a)(2) (allowing out-of-state attorneys to appear in                                                   



 "a particular action or proceeding" in Alaska upon motion and court approval).                                                                 



            5           Alaska  R.  Civ.  P.  56(c)  (authorizing  superior  court  to  grant  summary  

                                                                                                                                          

judgment if "the pleadings, depositions, answers to interrogatories, and admissions on  

                                                                          

 file, together with the affidavits, show that there is no genuine issue as to any material  

                                                                                                                                

 fact and that any party is entitled to a judgment as a matter of law").  

                                                                                                                



                                                                           -4-                                                                    7580
  


----------------------- Page 5-----------------------

                                                                    Bridges moved for reconsideration.                                                                                                                                                     She argued that Hardy's summary                                                                                                      



judgment motion "is prematurely brought before the Court and should be denied" and   



 that "[a]s                                           discovery progresses, [Bridges] will raise genuine issues of material fact                                                                                                                                                                                                                                                                                           



 against   Mr.   Hardy."     Chena   and   Hardy   opposed   reconsideration,   pointing   out   that  



 Bridges's late-filed motion for reconsideration had "failed to present any admissible                                                                                                                                                                                                                                                                                                   



 evidence to rebut the expert affidavit."                                                                                                                                                           The court denied reconsideration.                                                          



                                                                                                     b.                               Banner's motion for summary judgment                                                                                                                                 



                                                                    In May 2018 Banner moved to compel Bridges to provide responses to                                                                                                                                                                                                                                          



 Banner's discovery requests.                                                                                                                           Although the responses had been                                                                                                                                                         due in March, and                                                           



 although Banner had repeatedly inquired about the status of the responses, it still had not                                                                                                                                                                                                                                                                                                                                    



 received them.                                                              Banner then filed a second motion to compel in June, claiming that                                                                                                                                                                                                                                                                            



 Bridges had "served Banner with a set of severely deficient discovery responses" and                                                                                                                                                                                                                                                                                                                                        



 had failed to respond to Banner's attempt to confer about the deficiencies.                                                                                                                                                                                                                                                                                                               The court   



 granted both motions to compel.                                                                                          



                                                                    Banner then moved for summary judgment in July, relying on affidavits in                                                                                                                                                                                                                                                                                          



 which a neonatologist and an obstetrician opined that Banner's employees had met the                                                                                                                                                                                                                                                                                                                                           



 requisite standards of care.                                                                                                               Bridges did not timely oppose the motion, and the court                                                                                                                                                                                                                  



 granted it ten days after the deadline passed.                                                                                                                                                                               Four days later the court processed - but                                                                                                                                                         



 did not accept for filing - Bridges's late opposition to summary judgment, which                                                                                                                                                                                                                                                                                                                             



 included two expert affidavits and a request for oral argument.                                                                                                                                                                                                      



                                                                    In   August   Bridges   moved   for   reconsideration   of   Banner's   summary  



judgment.   Bridges also attempted to file a motion under Civil Rule 56(f) for more time                                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                          6  but the motion was not accepted for filing.  The court  

 to oppose summary judgment,                                                                                                                                                                                                                                                                                                                                                                                         



                                  6                                 Alaska R. Civ. P. 56 (f) ("Should it appear from the affidavits of a party                                                                                                                                                                                                                                                                 



 opposing the motion that the party cannot for reasons stated present by affidavit facts                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                                                                  -5-                                                                                                                                                                                                   7580
  


----------------------- Page 6-----------------------

 explained   that   Bridges   had   already   late-filed   her   response   to  Banner's   summary  



judgment motion, that her response had not been accompanied by a motion to accept late                                                                                                                          



 filing, and that judgment had already been entered by the time Bridges's response was                                                                                                                         



 received. Bridges then filed a motion contending that her response had been erroneously                                                                                                   



 rejected by the court clerk and arguing that the court should accept her late opposition                                             



 to Banner's summary judgment.                                                      After a delay caused by Bridges's improper service,                                                              



 Banner responded to the motion and asked that it be struck from the record.                                                                                                                   



                                                   c.              Final judgment   



                                  Chena,   Hardy,   and   Banner  all   sought   entry   of   final   judgment,   and   in  



 October the superior court granted final judgment in their favor.                                                                                                       First, it noted that                  



because over 30 days had passed since Bridges's motion for reconsideration, "that                                                                                                                           

                                                                         7      Second,  the  court  granted  Banner's  motion  to  strike  

 motion   is   taken   as   denied."                                                                                                                                                                      



 Bridges's response.  Third, the court ruled that "because all of plaintiff's claims have  

                                                                                                                                                                                                             



been dismissed and relief denied, entry of final judgment is appropriate."  The court  

                                                                                                                                                                                                           



 issued a separate order noting that Bridges's counsel had consistently failed to comply  

                                                                                                                                                                                                      



 with requirements for pleadings filed by pro hac vice  counsel and that future non- 

                                                                                                                                                                                                            

 compliant filings would be rejected.8  

                                                                      



                 6                (...continued)  



                                                                                                                                                                                                                

 essential  to  justify  the  party's  opposition,  the  court  may  refuse  the  application  for  

                                                                                                                                                                                            

judgment or may order a continuance to permit affidavits to be obtained or depositions  

                                                                                                                                                                                

 to be taken or discovery to be had or may make such other order as is just.").  



                 7                See Alaska R. Civ. P. 77(k)(4) (providing that a motion for reconsideration  

                                                                                                                                                                                  

 not "ruled upon by the court within 30 days from the date of the filing of the motion . . .  

                                                                                                                                                                                                                     

 shall be taken as denied").  

                                            



                 8                See Alaska R. Civ. P. 81(a)(2) (providing that if counsel appears pro hac  

                                                                                                                                                                                                                

 vice "all documents requiring signature of counsel for a party may not be signed solely  

                                                                                                                                                                                                          

by such attorney, but must bear the signature also of local counsel with whom the  

                                                                                                                                                                                                                

                                                                                                                                                                                       (continued...)  



                                                                                                         -6-                                                                                                7580
  


----------------------- Page 7-----------------------

                                                     3.                        Civil Rule 60(b) motion for relief from judgment                                                                                                                 



                                                     On the same day final judgment was entered, Bridges sought relief from                                                                                                                                                                                                  



 both summary judgment orders under Alaska Civil Rule 60(b).                                                                                                                                                                 



                                                     Bridges first argued that under Civil Rule 60(b)(1) she was entitled to relief                                                                                                                                                                                         



 due to "mistake, inadvertence, surprise or excusable neglect."                                                                                                                                                                                             Contending that her                                                   



 attorneys' staff had improperly calendared the date for response to Hardy's summary                                                                                                                                                                                                                       



judgment motion, she argued that this clerical error led to her late filing and constituted                                                                                                                                                                                                          



 excusable neglect. Regarding her response to Banner's summary judgment motion, she                                                                                                                                                                                                                                                



 argued that it was filed "only days after the deadline" and that "any neglect should be                                                                                                                                                                                                                                              



 deemed excusable" because she had been waiting for notarized affidavits from her                                                                                                                                                                                                                                                 



 experts and had filed the response promptly once the affidavits were received.                                                                                                                                                                                             



                                                     Bridges   alternatively   argued   that   the   court   should   grant  relief   under  



 Rule 60(b)(6).                                           Relief is available under this subsection of the rule for "any other reason                                                                                                                                                                                  



justifying relief from the operation of the judgment."                                                                                                                                                                   This ground "is reserved for                                                                              

                                                                                                                                                                                                                                                                                                           9   Bridges  

 extraordinary circumstances not covered by the preceding clauses" of the rule.                                                                                                                                                                                                                                  



 argued  that  extraordinary  circumstances  were  present  because  "[Bridges]  has  the  

                                                                                                                                                                                                                                                                                                                                  



 required expert support through proper affidavits to show that questions of material fact  

                                                                                                                                                                                                                                                                                                                                  



 exist which would normally prevent a grant of summary judgment." Further, she argued  

                                                                                                                                                                                                                                                                                                                      



 that there would be no prejudice to the defendants because they "would then only be put  

                                                                                                                                                                                                                                                                                                                                    



 in a position to have to defend a meritorious lawsuit, which . . . puts [them] in the same  

                                                                                                                                                                                                                                                                                                                            



 position they were in prior to the grant of summary judgment."  After a delay caused by  

                                                                                                                                                                                                                                                                                                                                      



                           8                         (...continued)  



                                            

 attorney is associated").  



                           9                        Hartland v. Hartland                                                                , 777 P.2d 636, 645 (Alaska 1989).                                                                                                        



                                                                                                                                                                   -7-                                                                                                                                                       7580
  


----------------------- Page 8-----------------------

Bridges's improper service, Banner, Chena, and Hardy each opposed the Rule 60(b)                                                                                                                                                                        



motion.  



                                         4.                  Hearing on Rule 60(b) relief                                                



                                         A hearing on the Rule 60(b) motion was held in January 2019.                                                                                                                                     Bridges's  



counsel McKeen began by describing the history of the case. He indicated that the court                                                                                                                                                                   



could take testimony from himself or from Bridges's counsel Counsman; the court                                                                                                                                                                          



directed McKeen to "[c]ontinue on as you see fit."  McKeen continued to describe the   



case without being sworn in.                                                    



                                         McKeen claimed that his firm's failure to timely respond to Hardy and                                                                                                                                                



Chena's summary judgment motion was because of differences between Michigan and                                                                                                                                                                               



Alaska procedure. In Michigan, he said, "We are used to the hearing date triggering the                                                                                                                                                                         



due date for the response."                                                         He also claimed that Power had failed to alert                                                                                                pro hac vice               



counsel to the motion's due date, and mentioned as a "mitigating factor" that Counsman                                                                                                                                                   



is   "essentially   a   single   parent"   who   was   responsible   for   his   daughter's   wedding  



preparations the previous August.                                               



                                         McKeen    then    addressed    Banner's    motion    for    summary    judgment,  



emphasizing that Bridges's counsel had not received the motion until July 11 even                                                                                                                                                                         

                                                                                         10   He indicated that it "was a matter of some considerable,  

though it was filed on July 2.                                                                                                                                                                                                   



you know, logistical challenge" to get notarized affidavits fromplaintiff's experts "in the  

                                                                                                                                                                                                                                                                 



time frame that was required." He said that Counsman had emailed Banner's counsel to  

                                                                                                                                                                                                                                                                    



ask for additional time to respond to the motion but that Banner had declined to provide  

                                                                                                                                                                                                                                                  



an  extension,  even  though  McKeen  "would  have  expected"  a  courtesy  extension.  

                                                                                                                                                                                                                                                                             



Counsman then "somehow, perhaps because of distractions with the impending wedding  

                                                                                                                                                                                                                                                



preparations, . . . had it in his mind that the response was due on July 27th."  When  

                                                                                                                                                                                                                                                     



                     10  

                                                                                                                                                                                                                                                       

                                         The record indicates that Banner's motion for summary judgment, which  

                                                                                                                                                                                                                                     

was filed on July 2, was returned to Banner for additional postage on July 6.  



                                                                                                                                 -8-                                                                                                                                   7580  


----------------------- Page 9-----------------------

                                                                                                                              

Counsman ultimately filed the response, it was "[t]echnically" "three or perhaps four  



                                  

days too late," which McKeen argued caused "zero prejudice."  McKeen also claimed  



                                                                                                                               

that Counsman had had three different legal assistants since the case had started and that  



                                                                                        

"it is extremely difficult to hire good paralegal talent" in Detroit.  



                                                                                                                

                    The court explained that Rule 60(b) relief is available only if the movant  



                                                                                                                              

can show a valid argument on the merits and pointed out that Bridges still had not filed  



                                                                                                                        

an expert affidavit to rebut Hardy and Chena's motion for summary judgment. McKeen  



                                                                                                                               

replied that although he was new to Alaska procedure, he had "read Rule 60 over and  



                                                                                                                         

over and over again," and did not "see where there's any provision in there that requires  



                                                                                                                        

affidavits." He also indicated that he could provide the court an affidavit from a certified  



                                                                                                                        

nurse-midwife "within a very short period of time."  At the end of the hearing, McKeen  



                                                                                                                               

said that if the court wished, Bridges's counsel would submit an affidavit. The court said  



                                                        

that it would leave that to counsel's discretion.  



                                                                                                                              

                    Two  days  after  the  hearing,  Bridges  moved  to  allow  the  filing  and  



                                                                                                                           

consideration of a certified nurse-midwife's affidavit. The affidavit expressed the expert  



                                                                                                                          

opinion that Hardy had violated the standard of care. The accompanying motion argued  



                                                                                                                         

that after the court granted Hardy's motion for summary judgment, Bridges had "lacked  



                                                                                                                             

a vehicle by which [Bridges] could submit an appropriate affidavit to the Court to show  



                                                                                                                         

that [Bridges] could indeed show that a genuine issue of material fact exists."  Bridges  



                                                                                                                            

argued that the court should deem the affidavit timely filed under Alaska Civil Rules  



                                                                -9-                                                         7580
  


----------------------- Page 10-----------------------

                                                                             11  

 6(b)(2) and 94.                                                                       Chena, Hardy, and Banner opposed Bridges's motion to allow the                                                                                                                                                                                                                                                                   



affidavit.  



                                                                  5.	                              Superior   court's   orders   granting   relief   from   judgment   and  

                                                                                                   defendants' petitions for review                                                                                                  



                                                                  In early April the court granted Bridges's Rule 60(b) motion as well as her                                                                                                                                                                                                                                                                             



motion to file the expert's affidavit.                                                                                                                                                The order held that Bridges's "claims for relief                                                                                                                                                                       



under [Alaska Civil] Rule 60(b)(1) are without merit."  Nonetheless, it concluded that  



relief was warranted under Rule 60(b)(6) "because of the injustice that will result if this  

                                                                                                                                                                                                                                                                                                                                                                                                                       



case is not allowed to proceed on the merits."  Because the "prejudice suffered by the  

                                                                                                                                                                                                                                                                                                                                                                                                         



defendants is largely limited to the costs associated with the post-summary judgment                                                                                                                                                                                                                                                                                                     



proceedings," it could be "alleviated by an award of actual reasonable attorney's fees and                                                                                                                                                                                                                                                                                                                              



costs assessed under Rule 95(a)."                                                                                                                                           The court therefore granted Bridges's Rule 60(b)                                                                                                                                                                                 



motion and allowed her to oppose the defendants' motions for summary judgment.                                                                                                                                                                                                                                                                                                                                               It  



also ordered that a hearing be held to address sanctions against Bridges's attorneys.                                                                                                                                                                                                                                                                                                                                                       



Chena, Hardy, and Banner moved for reconsideration, which the court denied.                                                                                                                                                                                                                                                                                  



                                                                  Hardy, Chena, and Banner petitioned for review of the order granting                                                                                                                                                                                                                                                        



Bridges's Rule 60(b) motion, and we granted review.                                                                                                                                                                              



III.	                            STANDARD OF REVIEW                                                                         



                                                                  "A trial court's ruling on an Alaska Civil Rule 60(b) motion is reviewed for                                                                                                                                                                                                                                                                             



abuse of discretion; it will not be disturbed unless we are left with 'the definite and firm                                                                                                                                                                                                                                                                                                                        



                                 11                               Alaska R. Civ. P. 6(b) ("[T]he court for cause shown may at any time in its                                                                                                                                                                                                                                                                                 



discretion . . . (2) upon motion made after the expiration of the specified period permit                                                                                                                                                                                                                                                                                                               

the act to be done where the failure to act was the result of excusable neglect . . . .");                                                                                                                                                                                                                                                                                                                

Alaska R. Civ. P. 94 (providing rules "may be relaxed or dispensed with by the court in                                                                                                                                                                                                                                                                                                                                        

any case where it shall be manifest to the court that a strict adherence to them will work                                                                                                                                                                                                                                                                                                                     

injustice").  



                                                                                                                                                                                                           -10-	                                                                                                                                                                                                  7580
  


----------------------- Page 11-----------------------

                                                                                                                                   12  

conviction on the whole record that the judge ha[s] made a mistake.' "                                                                 "We review de            



novo issues concerning the interpretation of civil rules, adopting the rule of law that is                                         



                                                                                                             13  

most persuasive in light of precedent, policy and reason."                                                        



IV.	         DISCUSSION  



                         The superior court denied relief under Rule 60(b)(1) but granted relief  

                                                                                                                                                          



under Rule 60(b)(6).  Hardy, Chena, and Banner argue that the superior court abused its  

                                                                                                                                                                



discretion by granting relief under Rule 60(b)(6); Bridges responds that we may affirm  

                                                                                                                                                        



on the alternative ground that the superior court abused its discretion by not granting  

                                                                                                                                                    

relief under Rule 60(b)(1).14                             To address these issues in a logical sequence, we first  

                                                                                                                                                            



consider Rule 60(b)(1), then Rule 60(b)(6).  

                                                                                    



             A.	         The Superior Court Did Not Abuse Its Discretion By Refusing To  

                                                                                                                                                              

                         Grant Relief Under Rule 60(b)(1).  

                                                                                                



                         Bridges argues that the superior court erred by failing to grant relief under  

                                                                                                                                                         



Rule 60(b)(1), which permits the court to grant relief from judgment due to "mistake,  

                                                                                                                                                  



             12           Williams v. Williams                    , 252 P.3d 998, 1004 (Alaska 2011) (alteration in                                             



original) (quoting                 Thomas v. Thomas                    , 581 P.2d 678, 679 (Alaska 1978)).                                  



             13          Bravo  v.  Aker,  435  P.3d  908,  912  (Alaska  2019)  (quoting  Cooper  v.  

                                                                                                                                                

Thompson, 353 P.3d 782, 786 (Alaska 2015)).  

                                                                                          



             14          Bridges also argues that we may affirm the superior court's decision on the  

                                                                                                                                                              

alternative  ground  that  it  erred  by  denying  her  requests  under  Rule  56(f)  for  a  

                                                                                                                                                                 

continuance  to  obtain  affidavits  supporting  her  opposition  to  summary  judgment.  

                                                                                                                                                                      

Although generally true that we may affirm the superior court on any ground evident in  

                                                                                                                                                                

the record, Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006), this rule does not apply  

                                                                                                                                                          

here the way Bridges suggests.  Her Rule 56(f) requests were all filed and denied prior  

                                                                                                                                                           

to final judgment.  But Bridges did not appeal the court's final judgment, and she thus  

                                                                                                

has  waived  the  opportunity  to  challenge  it  or  any  procedural  rulings  leading  to  it.  

                                                                                                                                                                      

Bridges instead sought relief under Rule 60(b).   The court granted her motion, and  

                                                                                                                                                            

Hardy, Chena, and Banner then petitioned for our review.  Our review thus is limited to  

                                                                                                                                                                

the   superior   court's   order   granting   Bridges   relief   from  final   judgment   under  

                                                                                                                                                       

Rule 60(b)(6).  

           



                                                                              -11-	                                                                       7580
  


----------------------- Page 12-----------------------

inadvertence, surprise or excusable neglect." First, she argues that her counsel's neglect                                                                                      



was excusable.                     Second, she argues that even if her counsel's neglect is inexcusable, it                                                                                 



falls    within    what    she    calls    an    "injustice    exception"    that    permits    relief    under  



Rule 60(b)(1).                    Neither argument is persuasive.                                          



                              1.	           The superior court did not abuse its discretion by finding the                                                                              

                                            failures of Bridges's counsel inexcusable.                          



                              We clarified our approach to excusable neglect under Rule 60(b)(1) in                                                                                       



                                                              15  

Erica G. v. Taylor Taxi, Inc                                 .                                                                                                         

                                                                    In that case, we quoted the Second Circuit's description  



                                                                                                                                                                                

"of excusable neglect as a somewhat elastic concept that may encompass delays caused  



                                                                                                                                                                                            

by inadvertence, mistake, or carelessness, at least when the delay was not long, there is  



                                                                                                                                                                                    

no bad faith, there is no prejudice to the opposing party, and movant's excuse has some  

merit."16  

                                                                                                                                                                                     

                     We went on to state "that to seek relief on this basis a party must show both  



                                                                                                                                                                             

neglect and a valid excuse for that neglect" and that "there must be a causal link between  



                                                                                                                                                                                   

the excusable neglect and the party's failure to timely act; the failure must be the result  



                                                         17  

                                                              

of the excusable neglect." 



                                                                                                                                                                           

                              As an initial matter, no admissible evidence supports the excuses proffered  



                                                                                                                                                                                     

by Bridges's counsel at the January 2019 hearing.  Counsel's unsworn statements were  



         

not testimony.  



               15	            357  P.3d  783  (Alaska  2015).    



               16            Id.  at  787  (emphasis  in  original)  (quoting  LoSacco  v.  City  of  Middletown,  



71   F.3d   88,   93   (2d   Cir. 1995)).   Erica   G.   adopted   the   same   standard   for   excusable  

neglect  in  interpreting  Alaska  Civil  Rules  6  and  60(b)(1).   Id .  at  787-78.   



               17            Id . at 787 (emphasis in original) (first quoting Coppe v. Bleicher, No. S- 

                                                                                                                                                                                          

 13631, 2011 WL 832807, at *5 (Alaska Mar. 9, 2011); and then quoting Alaska R. Civ.  

                                                                                                                                                                                      

P. 6(b)(2)).  

       



                                                                                           -12-	                                                                                    7580
  


----------------------- Page 13-----------------------

                                                     But   even   if   we   consider   these   unsworn  representations   as   admissible  



 evidence,   the   superior   court   did   not   abuse   its   discretion   by   finding   these   excuses  



 insufficient.     Whether  pro  hac  vice   counsel   missed   Hardy   and   Chena's   summary  



judgment motion response deadline because office staff incorrectly calendared it or                                                                                                                                                                                                                                             



 counsel miscalculated it due to unfamiliarity with Alaska procedure, neither mistake                                                                                                                                                                                                                              



 excuses local counsel's failure to correct the error.                                                                                                                                                          And deciding to wait for expert                                                                          



 affidavits before opposing Banner's summary judgment - i.e., knowingly missing a                                                                                                                                                                                                                                                             



 response deadline while waiting for the relevant evidence without asking the court for                                                        



 an extension - is simply no excuse at all.                                                                                                                          Counsel's explanations make discerning the                                                                                                                        



 actual reason for the failures difficult.                                                                                                              In addition to claiming that counsel purposely                                                                    



 waited for expert affidavits before opposing Banner's summary judgment, Bridges's                                                                                                                                                                                                                          



 counsel also represented that his colleague had the wrong date in mind because he was                                                                                                                                                                                                                                             



 busy planning his daughter's wedding.                                                                                                                     The fact that several of these excuses were not                                                                                                                            



 mentioned until the hearing further supports the superior court's decision not to credit                                                                                                                                                                       



 them. These inconsistent and insufficient explanations are very similar to the "shifting"                                                                                                                                                                                                                  



 and "myriad" explanations in                                                                                         Erica G.                            , which "undercut even those that most closely                                                                       

                                                                                                                 18  The superior court did not abuse its discretion by holding  

 resemble excusable neglect."                                                                                                                                                                                                                                                                                        

 that Bridges's attorneys' errors were not excusable.19  

                                                                                                                                                                 



                           18                        Id .  at  784,  788.  



                           19                        Bridges  contends that  Erica G.  adopts the standard for excusable neglect  



 under  federal C                                              ivil  Rule  60  set  forth  in  Pioneer  Investment S                                                                                                                              ervices   Co.  v.  Brunswick  

Associates  Ltd.  Partnership,  507  U.S.  380  (1993).   She  then  analogizes  to  federal  cases  

 interpreting  Pioneer  to  argue  that  her  counsel's  neglect  was  excusable.   These  cases  do  

 not alter  the analysis, however, as even  under  Pioneer,  courts  must  consider  the proffered  

 reason   for   counsel's   neglect.    Id .   at   395.    And   the   superior   court   did   not   abuse   its  

 discretion  by  concluding  that  Bridges's  reasons  were  insufficient.   



                                                                                                                                                                  -13-                                                                                                                                                          7580
  


----------------------- Page 14-----------------------

                          2.	          Attorney neglect that is not excusable does not warrant relief                                                         

                                       under Rule 60(b)(1), even to prevent injustice.                               



                          Bridges argues that even if her attorneys' neglect is not excusable, she is                                   



                                                                                                                                                                     20  

entitled to relief under Rule 60(b)(1) to avoid injustice, citing our decisions in                                                                   Erica G        .  



                                                                                                                                              

and Farrell ex rel. Farrell v. Dome Laboratories, Inc., a Division of Miles Laboratories,  



        21  

Inc.                                                                                                                                                           

               In  Farrell  we  stated  that  although  "an  attorney's  failure  to  advance  a  legal  



                                                                                                                                                        

argument or claim, whether attributable to mistake, inadvertence or neglect, typically  



                                                                                                                                                                          

does not warrant relief," an exception is recognized "where the failure to provide relief  



                                                        22  

                                                                                                                                                              

would result in an injustice."                               Bridges contends that this exception "would then apply  



                                                                                                                                                           

in this case if the mistakes of counsel were inexcusable." But that is an incorrect reading  



                                                                                                   

of Farrell, the decisions it relied on, and Erica G.  



                                                                                                                                                                  

                          In Farrell we supported our statement about an "exception" by citing two  

                                                                                                           23    In A. F. Dormeyer Co. v. M.  

                                                                                                                                                                   

Seventh Circuit decisions involving excusable neglect. 



J.  Sales & Distributing Co.  default judgment was entered after defendant's attorney  

                                                                                                                                                        

timely mailed an answer to plaintiff but failed to file it with the court.24                                                                 The appellate  

                                                                                                                                                       



court vacated the entry of default, holding that the failure to file "was attributable to  

                                                                                                                                                                     

                                                                                                                                     25   And in Fleming  

 'mistake' and 'excusable neglect' within the meaning of Rule 60(b)." 

                                                                                                                                                         



v. Huebsch Laundry Corp. the defendant stipulated to a consent judgment after being  

                                                                                                                                                              



             20           357  P.3d.  783.  



             21           650  P.2d  380  (Alaska   1982).  



             22           Id.  at  384.  



             23           Id .  at  384  n.14.  



             24           461  F.2d  40,  41  (7th  Cir.   1972).  



             25           Id .  at  43.  



                                                                                -14-	                                                                          7580
  


----------------------- Page 15-----------------------

                                                                                 26  

misled about liability by a government agency.                                       The appellate court found grounds for                        

vacating the judgment under Rule 60(b) "under the subdivision of excusable neglect."                                                                27  



                       By citing these cases for the "exception," Farrell established that although  

                                                                                                                                        



an attorney's failure to advance a legal claim due to mistake, inadvertence, or neglect is  

                                                                                                                                                    



usually inexcusable, in exceptional cases an attorney's neglect may be excusable and can  

                                                                                                                                                  

therefore  be  grounds  for  relief  under  Rule  60(b)(1).28                                         This  was  the  case  in  both  

                                                                                                                                               



Dormeyer and Fleming :  Even though the attorney in Dormeyer failed to properly serve  

                                                                                                                                              



the answer on the court and the attorney in Fleming failed to properly interpret the law,  

                                                                                                                                                



their conduct was nonetheless deemed excusable neglect.  The Farrell "exception" is  

                                                                                                                                                    



therefore similar to the U.S. Supreme Court's statement in Pioneer  that "[a]lthough  

                                                                                                                                   



inadvertence, ignorance of the rules, or mistakes construing the rules do not usually  

                                                                                                                             



constitute 'excusable' neglect, it is clear that 'excusable neglect' . . . is a somewhat  

                                                                                                                                     



 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond  

                                                                                                                                           

                                               29   This reading of Farrell is consistent with the language of  

the control of the movant."                                                                                                                         

                                



Rule 60(b)(1) itself, which refers only to "excusable neglect" and makes no exception  

                                                                                                                                 



            26          159  F.2d  581,  583  (7th  Cir.   1947).  



            27         Id .  at  585.  



            28         It   is  worth  noting that this   discussion   in  Farrell  was   dicta.   We   did  not  



resolve  the  issue  of  whether  relief  under  Rule  60(b)(1)  was  proper  by  deciding  whether  

counsel's  neglect  was  excusable  or  whether  injustice  existed.   650  P.2d  at  384.   Instead  

we  concluded  that  the  motion  for  relief  under  Rule  60(b)(1)  was  untimely  because  it  was  

filed  more  than  a  year  after  the  judgment.   Id .  



            29         Pioneer Inv. Servs. Co. v.Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392  

                                                                                                                                                 

(1993) (footnote omitted) (quoting 4A C. WRIGHT  & A. MILLER, FEDERAL PRACTICE  AND  

                                                                   

PROCEDURE      1165,  at  479  (2d  ed.   1987)).  



                                                                        -15-                                                                  7580
  


----------------------- Page 16-----------------------

for injustice.               It also explains why cases since                                      Farrell  have not discussed or applied an                                         

"exception" for inexcusable neglect under Rule 60(b)(1).                                                                   30  



                             Nor did our decision in Erica G.  expand Farrell  to create an "injustice  

                                                                                                                                                                     



exception."   In Erica G., after affirming the superior court's ruling that the excuses  

                                                                                                                                                                         



tendered by counsel were not valid, we also quoted Farrell in pointing out that Erica had  

                                                                                                                                                                                   



"not carried her burden of demonstrating that . . . 'the failure to provide relief would  

                                                                                                                                                                            

result in an injustice.' "31                               Bridges emphasizes that we used this language only after  

                                                                                                                                                                                



determining that Erica's counsel's neglect was inexcusable; from this she reasons that  

                                     



a court may grant relief under Rule 60(b)(1) for  inexcusable neglect if not doing so  

                                                                                                                                                                                     



would cause injustice.  

                             



                             Bridges misreads Erica G.  We stated that to succeed Erica would have had  

                                                                                                                                                                                   



to show both "the existence of 'mistake, inadvertence, surprise or excusable neglect' "  

                                                                                                                                                                                        



and  "that  the  superior  court's  refusal  to  relieve  her  from  the  final  judgment  was  

                                                                                                                                                                                 

                                                             32   Our discussion of whether Erica had shown that denying  

 'manifestly unreasonable.' "                                                                                                                                            

                                                           



relief would result in injustice pertains to that latter question. There is no indication that  

                                                                                                                                                                                   



we intended to depart from the framework established by the rule's text and precedent  

                                                                                                                                     



by relieving the movant fromhaving to show that the neglect was "excusable" -i.e. that  

                                                                                                                                                                                   



              30             For example, one year after                                 Farrell, we held in                        Rill v. State, Department     



of Highways                , 669 P.2d 573, 576 (Alaska 1983), that Rule 60(b)(1) could not apply when                                                                          

an attorney's neglect was inexcusable.                                              Justice Rabinowitz in dissent argued for a more                                            

expansive definition of "excusable neglect," but he did not suggest that                                                                                        inexcusable  

neglect could be grounds for relief from judgment under Rule 60(b)(1), even to avoid                                                                                          

injustice.   Id.  at 577-78 (Rabinowitz, J., dissenting).                              



              31             357 P.3d 783, 789 (Alaska 2015) (footnote omitted) (quoting Farrell, 650  

                                                                                                                                                                                   

P.2d at 384).  

                 



              32            Id.  (first quoting Alaska R. Civ. P. 60(b)(1), and then quoting Ranes &  

                                                                                                                                                                       

Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508 (Alaska 2015)).  

                                                                                                                                                                                 



                                                                                         -16-                                                                                  7580
  


----------------------- Page 17-----------------------

                                                                                                     33  

 "movant's excuse has some merit                                                                 ."    The superior court did not abuse its discretion by                                                                                          



 declining to grant relief to Bridges under Rule 60(b)(1) after finding her attorneys'                                                                                                                                      



 neglect was inexcusable.           



                    B.	                Granting   Relief   Under   Rule   60(b)(6)   Due   To   Bridges's   Counsels'  

                                       Neglect Was Error.                      



                                       In addition to Rule 60(b)'s five specific grounds for relief, the rule permits                                                                                                                



 a court to grant relief for "any other reason justifying relief from the operation of the                                                                                                                                                       



judgment." Yet that broad language is limited by the "mutual exclusivity rule": Grounds                                                                                                                                          



 for relief described in the first five subsections of Rule 60(b) cannot be grounds for relief                                                                                                                                             



                                                                              34  

 under the sixth subsection.                                                        



                                                                                                                                                                                                                                 

                                       Quoting our decision in Farrell, the superior court reasoned that although  



                                                                                                                                                                                                                                          

 an attorney's "mistake, inadvertence or neglect[] typically does not warrant relief" under  



                                                                                                                                                                                                                                                     

 Rule 60(b)(1), "[a]n exception to this general rule is recognized . . . where the failure to  



                                                                                                                                                                                                                                         

 provide relief would result in an injustice."   The court granted Bridges relief under  



                                                                                                                                                                                                                                                    

 Rule 60(b)(6) because of the "injustice that will result if this case is not allowed to  



                                             

 proceed on the merits."  



                                                                                                                                                                                                                              

                                       The  superior  court's  reading  of  the  Farrell  decision  and  resulting  



                                                                                                                                                                                                                                    

 interpretation  of  Rule  60(b)(6)  were  erroneous.                                                                                                      Because  of  the  rule  of  mutual  



                                                                                                                                                                                                                                           

 exclusivity, garden-variety attorney mistakes and inexcusable neglect that do not merit  



                                                                                                                                                                                                                                                             

 relief under Rule 60(b)(1) cannot support relief from judgment under Rule 60(b)(6).  



                                                                                                                                                                                                                                                   

 And although attorney neglect so gross as to constitute abandoning the client might be  



                                                                                                                                                                                                                                                   

 grounds for relief under Rule 60(b)(6), the record in this case does not support relief on  



                                                                                                                                                                                                                                

 this theory. We therefore reverse the grant of relief from judgment under Rule 60(b)(6).  



                    33                 Id.  at 787 (emphasis in original) (quoting                                                                            LoSacco v. City of Middletown                                                             ,  



 71 F.3d 88, 93 (2d Cir. 1995)).                                     



                    34                 See Farrell, 650 P.2d at 385.  

                                                                                                                            



                                                                                                                       -17-	                                                                                                                7580
  


----------------------- Page 18-----------------------

                          1.	         We did not hold in                        Farrell   that relief for attorney neglect is                                   

                                      available under Rule 60(b)(6) to avoid injustice.                              



                          Our   Farrell   decision   does   not   authorize   relief   from   judgment   under  



Rule 60(b)(6) for inexcusable attorney neglect, even to avoid injustice.  Our reference                               

                                                                                                        35   This is clear from our refusal  

to injustice in that case pertained only to Rule 60(b)(1).                                                                                             



to entertain relief on that ground because the motion was not filed within a year of the  

                                                                                                                                                              

judgment from which relief was sought36 - a limit that applies to Rule 60(b)(1), but not  

                                                                                                                                                              

Rule 60(b)(6).37  

                                



                          Moreover,  in  Farrell  we  expressly  declined  to  consider  whether  the  

                                                                                                                                                             



 attorney's  neglect  justified  relief  under  subsection  (b)(6)  because  of  the  mutual  

                                                                                                                                                      



 exclusivity rule.  "It is well settled that clause (6) and the first five clauses of Rule 60(b)  

                                                                                                                                                          



 are mutually exclusive.  Relief under clause (6) is not available unless the other clauses  

                                                                                                                                                      

 are inapplicable."38   We reasoned that the attorney's neglect "may have been cognizable  

                                                                                                                                                

under clause (1) had [a] motion for relief been filed in a timely fashion."39                                                                Because the  

                                                                                                                                                              



movant did not point to anything suggesting "something more than one of the grounds  

                                                                                                                                                    



 stated in the first five clauses," we concluded that "[t]he mutual exclusivity rule therefore  

                                                                                                                                                   

bar[red] relief under clause (6)."40                              Although Farrell does not rule out the possibility of  

                                                                                                                                                                



             35          Id.  at  384-85.  



             36          Id.  at  384.  



             37          See  Alaska  R.  Civ.  P.  60(b)  ("The  motion  shall  be  made  within  a  reasonable  



time, and  for reasons (1),  (2) and (3)  not  more  than  one year  after the date of notice of  

the  judgment  .  .  .  .").   



             38          Farrell, 650 P.2d at 385 (footnote omitted).  

                                                                                                              



             39          Id.  

                                 



             40          Id.  (quoting  11  C.   WRIGHT    &   A.   MILLER,   FEDERAL   PRACTICE   AND  

                                                          

                                                                                                                                          (continued...)  



                                                                              -18-	                                                                       7580
  


----------------------- Page 19-----------------------

relief under Rule 60(b)(6) for attorney neglect, it certainly does not hold that relief for     



 attorney neglect                 is  available under that rule to avoid injustice.                          



                            2.           Bridges is not entitled to relief under Rule 60(b)(6).                                                            



                            The petitioners argue that attorney neglect is                                            never  grounds for relief from                    



judgment under Rule 60(b)(6) due to the mutual exclusivity rule.                                                                       As explained above,          



we held in            Farrell  that "[r]elief under clause (6) is not available unless the other clauses                                                           



                                    41                                                                                                                           42  

 are inapplicable,"                                                                                                                                                   

                                         and we have applied this rule consistently in our decisions. 



                                                                                                                                                                    

                            Bridges argues that we should adopt an approach taken by several federal  



                                                                                                                                                                    

 courts   holding   that   gross   attorney   neglect   may   be   grounds   for   relief   under  



                                                                                                                                                                      

 subsection (b)(6).  Although federal courts recognize the mutual exclusivity rule when  



                                                                                                                                                                       

 interpreting the analogous federal rule, several circuit courts have also held that gross  



                                                                                                                                                                     

 attorney neglect may be grounds for relief under subsection (b)(6).  Chena and Hardy  



                                                                                                                                                                 

 argue that our precedents explicitly exclude the possibility of relief based on attorney  



                                                                                                                                                                           

neglect under subsection (b)(6), no matter what variety.  But we have not applied the  



                                                                                                 43  

                                                                                 

mutual exclusivity rule in such airtight fashion. 



              40            (...continued)  



PROCEDURE,    2864  ,at  220  (1973)).  



              41           Id.   



              42            See,   e.g.,   Williams   v.   Crawford,   982   P.2d   250, 255 n.16   (Alaska   1999)  



 ("Although clause six  is a 'catch-all' provision, relief under  clause six is not  available  

unless  the  other  clauses  are  inapplicable.");  Hartland  v.  Hartland,  777  P.2d 636,  645  

 (Alaska   1989)   ("Relief  under   clause   (6) is not   available  unless  the   other   clauses   are  

 inapplicable.");   O'Link   v.   O'Link,   632 P.2d   225,   229   (Alaska   1981)   ("Clause   (6)   is  

reserved  for  extraordinary  circumstances  not  covered  by  the  preceding  clauses.").  



              43            In two unpublished cases, we have directly stated that Rule 60(b)(6) relief  

                                                                                                                                                                       

 is excluded by the mutual exclusivity rule even in cases of inexcusable attorney neglect.  

                                                                                                                                                                                   

 In  Coppe v. Bleicher  we  wrote  that  the plaintiff's  "major  complaint is that  her  trial  

                                                                                                                                                                         

                                                                                                                                                      (continued...)  



                                                                                     -19-                                                                              7580
  


----------------------- Page 20-----------------------

                     Some    of    our    decisions    suggest    that    attorney    neglect   can   in    rare  



circumstances be grounds for relief under Rule 60(b)(6).                                      For example, our first case          

                                                                                                      44    Noting the mutual  

articulating the mutual exclusivity rule was                             O'Link v. O'Link             .                        



exclusivity rule, we analyzed under Rule 60(b)(6) the appellant's claim that he had been  

                                                                                                                                   



"ill-advised by his attorney"; finding no "extraordinary circumstances" we decided that  

                                                                                                                                     

the claim "fit[] neatly into subsection (b)(1)" and denied relief.45   Our language left open  

                                                                                                                                   



the  possibility  that  even  if  a  claim  falls  under  another  subsection,  relief  might  be  

                                                                                                                                      

availableunderRule60(b)(6) in"extraordinarycircumstances."46  Similarly, in Hartland  

                                                                                                                            



v. Hartland we noted the mutual exclusivity rule before concluding that the case failed  

                                                                                                                                  

to "present an extraordinary case for relief under [subsection] (b)(6)."47                                         We noted that  

                                                                                                                                     



even if there were malpractice as alleged, it was "highly questionable" whether that  

                                                                                                                                    



           43        (...continued)  



                                                                                                                                    

attorney  performed  incompetently;  this  claim  falls  under  Civil  Rule  60(b)(1)  and  

                                                                                                                                      

precludes relief under Civil Rule 60(b)(6)."   No. S-13631, 2011 WL 832807, at *7  

                                                                                                                                    

(Alaska Mar. 9, 2011). We were even more explicit in Coty v. Century Enterprises, Inc.:  

                                                                                                                              

" '[A]n attorney's failure to act responsibly towards his or her clients when the attorney  

                                                                                                                           

could be expected to do so constitutes inexcusable neglect' for which the aggrieved  

                                                                                                                                    

client may not seek relief from judgment under Rule 60(b)."  No. S-8471, 1999 WL  

                                                                                                                                     

33958776, at *1 (Alaska Sept. 29, 1999) (alteration in original) (quoting Hartland, 777  

                                                                                                                       

P.2d at 645). As unpublished cases, however, Coppe and Coty do not have precedential  

                                                                                                                                       

value.  See Alaska R. App. P. 214(d).  And we have not explicitly held that relief is  

                                                                                                                                

unavailable for inexcusable attorney neglect under Rule 60(b) in any published cases.  



           44        632 P.2d at 229.  

                                                  



           45        Id . at 229-30.  

                               



           46        Id .  



           47        777 P.2d at 645.  

                                         



                                                                  -20-                                                            7580
  


----------------------- Page 21-----------------------

                                                        48  

"appreciably affected the result."                           Our language again left open the possibility of relief                          

under Rule 60(b)(6) in an "extraordinary case."                                   49  



                       Other decisions suggest attorney neglect may be grounds for relief under  

                                                                                               



only subsection (b)(1). In Neilson v. Neilson a father moved for 60(b) relief from a child  

                                                                                                                                             



custody agreement, citing "bankruptcy, poverty, medical conditions, and his attorneys'  

                                                                                                                                     

performance."50  Analyzing his claims under Rule 60(b)(6), we wrote that the factors the  

                                                                                                                                                 



father cited, "and especially any neglect on his attorneys' part, fall under the first clause  

                                                                                                                                            

of the Rule 60(b) umbrella:   mistake, inadvertence, surprise or excusable neglect."51  

                                                                                                                                                        



Noting that Rule 60(b)(1) relief was time-barred, we concluded "that the superior court  

                                                                                                                                              



did  not  abuse  its  discretion  in  denying  [the  father's]  motion  for  relief  under  

                                                                                                                                           

Rule 60(b)(6)."52              This case is not directly on point because we were not presented with  

                                                                                                                                               



an argument that inexcusable attorney neglect could be cognizable under Rule 60(b)(6).  

                                                                                                                                       



                       Our decision in Rill v. State, Department of Highways touches on the issue  

                                                                                                                                              



of gross neglect by an attorney but, contrary to Bridges's suggestion, does not resolve  

                                                                                                                          

    53   In that case, Justice Rabinowitz disagreed with the court's definition of "excusable  

it.                                                                                                                                



neglect" and offered his own definition:  "Rule 60(b)(1) can properly be read to include  

                                                                                                                                          



within the notion of 'excusable neglect' instances in which an attorney wholly fails to  

                                                                                             



represent the client's interests, assuming that the client reasonably believed that the  

                                                                                                                                                



            48         Id .  



            49         Id .  



            50         914  P.2d   1268,   1270-72  (Alaska   1996).   



            51         Id.  at   1272.  



            52         Id.   



            53         669  P.2d  573,  575-76  (Alaska   1983).  



                                                                       -21-                                                                  7580
  


----------------------- Page 22-----------------------

                                                                               54  

attorney would provide such representation."                                        The  Rill  majority addressed the dissent               



in a footnote:  "The arguments raised by Justice Rabinowitz in his dissent relate much   



more to Civil Rule 60(b)(6), which permits a judgment to be set aside for 'any other                                                           



reason    justifying    relief,'    than    they   relate    to    'excusable    neglect'    under    Civil  

                           55   Bridges claims that this footnote is equivalent to a holding that Justice  

Rule 60(b)(1)."                                                                                                                             



Rabinowitz's definition of excusable neglect "would provide a basis for relief under  

                                                                                                                                              



Civil Rule 60(b)(6)."  We disagree.  The court did not endorse that standard for relief  

                                                                                                                                               



under subsection (b)(6). In fact it expressed skepticismthat gross attorney neglect would  

                                                                                                                                              

be appropriate grounds for relief under that subsection.56  But because the parties did not  

                                                                                                                                                   



invoke subsection (b)(6) in seeking relief, the court did not definitively answer this  

                                                                                                                                                 



question.  



                       Looking to federal law, we observe that the majority of circuit courts that  

                                                                                                                                                  



have addressed this issue recognize gross attorney misconduct as a grounds for relief  

                                                                                                                                               

                                                                                      57   The Third, Sixth, Ninth, and D.C.  

under Federal Rule of Civil Procedure 60(b)(6).                                                                            

                                                                      



            54         Id.  at  578-79  (Rabinowitz,  J.,  dissenting)  (footnote  omitted).  



            55         Id.  at  576  n.1  (majority  opinion).   



            56         Id.  (stating  that  "it  is  unnecessary  for   [us]  to set forth  our  disagreements  



with  Justice  Rabinowitz's  analysis"  (emphasis  added)).   



            57         Chena  and Hardy argue that Bridges  has  waived  this  argument  by  failing  



to  raise  it  before  the  superior  court.   We  disagree.   Bridges  argued  that  she  was  entitled  

to  Rule  60(b)(6)  relief  in  her  initial  Rule  60  motion  to  the  superior  court.   She  now  cites  

federal  precedent  to rebut  the petitioners' counterargument  that  Rule  60(b)(6)  relief  is  

unavailable  due  to  the  mutual  exclusivity  rule.   Bridges's  failure  to  anticipate  and  rebut  

this   counterargument   in   her   opening   Rule   60   motion   does   not   preclude   her   from  

responding  to  the  argument  now.  



                                                                        -22-                                                                   7580
  


----------------------- Page 23-----------------------

                                                                           58  

Circuits  have  all  joined  this  line  of  cases,                           while  the  Seventh  and  Eighth  Circuits  have  



                                                      59  

explicitly   declined   to   do   so.                       The   Ninth   Circuit's   decision   in   Community   Dental  



Services  v.  Tani  is  representative  of  the  majority  rule,  holding  that  "where  the  client  has  



demonstrated  gross  negligence  on  the  part  of  his  counsel,  a  default  judgment  against  the  

client  may  be  set  aside  pursuant  to  Rule  60(b)(6)."60  

                                                                                                 The  court  reasoned:   



                        First,  [Rule  60(b)(6)]  is  remedial  in  nature  and  thus  must  be  

                        liberally  applied.   Second,  judgment  by  default  is  an  extreme  

                        measure  and a case should, "whenever possible, be decided  

                         on   the   merits."    Additionally,   our  holding   makes   common  

                         sense,   as   is   evident   from   the   facts   in   the   case   before   us.   

                        When an attorney  is  grossly  negligent, as counsel was here,  

                        the  judicial  system  loses  credibility  as  well  as  the  appearance  

                        of fairness,  if  the  result  is  that an innocent party is forced to  

                         suffer  drastic  consequences.[61]  



                         Our precedents express similar principles.  Like the Ninth Circuit, we have  

                                                                                                                                                      



held  that  "Rule  60(b)  in  general,  and  clause  (6)  in  particular,  should  be  liberally  

                                                                                                                                              



construed to enable courts to vacate judgments  whenever  such action is necessary to  

                                                                                                                                                          



            58          See, e.g.      ,  Cmty. Dental Servs. v. Tani                     , 282 F.3d 1164, 1169 (9th Cir. 2002);                   



Shepard Claims Serv., Inc. v. William Darrah & Assocs.                                                  , 796 F.2d 190, 195 (6th Cir.                  

 1986);  Boughner v. Sec'y of Health, Educ. &Welfare                                           , 572 F.2d 976, 978 (3d Cir. 1978);                

L.P.  Steuart, Inc. v. Matthews                        , 329 F.2d 234, 235 (D.C. Cir. 1964).                                



            59          See Dickerson v.Bd. of Educ., 32 F.3d 1114, 1118 (7th Cir. 1994) ("Indeed,  

                                                                                                                                             

this court has recently held that counsel's negligence, whether gross or otherwise, is  

                                                                                                                                                           

never a ground for Rule 60(b) relief."); Heim v. Comm'r, 872 F.2d 245, 248 (8th Cir.  

                                                                                                                                                       

 1989) (concluding errors committed by an attorney, "even accepting the designation of  

                                                                                                                                                          

gross         negligence,              do      not       constitute            an      adequate             showing            of      'exceptional  

                                                                                                                                     

circumstances,' " and therefore do not warrant relief).  

                                                                                                    



            60          282 F.3d at 1169.  

                                               



            61          Id. at 1169-70 (citations omitted) (quoting Falk v. Allen, 739 F.2d 461, 463  

                                                                                                                                                        

(9th Cir. 1984)).  

                  



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----------------------- Page 24-----------------------

                                 62  

accomplish justice."                 We too have observed that "[t]he law favors deciding cases on                                     



                     63  

their merits."                                                                                                          

                         And we agree with the Ninth Circuit that holding the client responsible  



                                                                                                                          

for the neglect of an attorney who effectively abandoned her undermines the credibility  



                                                                                                                                  

of the legal system.   For these reasons, we do not rule out the possibility that gross  



                                                                                                                            

neglect by an attorney may justify relief from judgment under Rule 60(b)(6).  



                                                                                                                              

                     We hold, however, that to warrant relief under Rule 60(b)(6) gross attorney  



                                                                                                                                

neglect  must  rise  to  the  level  of  abandoning  the  client.                                   To  allow  relief  under  



                                                                                                                            

Rule 60(b)(6) for attorney neglect merely because it is gross (as opposed to ordinary)  

                                                                                                                            64  negate  

                                                                                                                                

would be inconsistent with the principle that the attorney is the client's agent, 



Rule 60(b)(1)'s express terms providing that only "excusable" neglect is grounds for  

                                                                                                                                      



relief from final judgment, and run counter to the mutual exclusivity rule.  In Tani, for  

                                                                                                                                      



instance, counsel failed to file a timely answer, failed to serve the answer on opposing  

                                                                                                                            



counsel, failed to obey a court order to serve the answer and to call opposing counsel,  

                                                                                                   

                                                                                                                               65  The  

and failed to file an opposition to the resulting motion for a default judgment.                                                    

                                                                                                               



Ninth Circuit concluded that counsel had "virtually abandoned his client by failing to  

                                                                                                                                       

proceed with his client's defense despite court orders to do so."66                                     Such abandonment is  

                                                                                                                                        



           62        O'Link  v.  O'Link,  632  P.2d  225,  230  (Alaska   1981).   



           63        Shea  v.  State,  Dep't  of  Admin.,  Div.  of  Ret.  & Benefits,  204  P.3d  1023,  1029  



(Alaska  2009)  (quoting  Sheehan  v.  Univ.  of Alaska , 700 P.2d  1295,  1298  (Alaska  1985)).   



           64        See  Link  v.  Wabash  R.R.  Co.,  370  U.S.  626,  633-34  (1962)  (noting  that  the  



client  "voluntarily  chose  this  attorney  as  his  representative  in  the  action,  and  he  cannot  

now  avoid  the  consequences  of  the  acts  or  omissions  of  this  freely  selected  agent").   



           65        282 F.3d at 1166-67.  

                                                          



           66        Id.  at  1170; see  also  12 JAMES   W.   MOORE,   ET   AL.,   MOORE'S   FEDERAL  

                                                              

PRACTICE    60.48[4][b]  (3rd  ed.  2016)  (stating  that  relief  for  inexcusable  neglect  should  

ordinarily  not  be  available  under  federal  Rule  60(b)(6)  but  that  "[a]  different  situation  is  

                                                                                                                    (continued...)  



                                                                  -24-                                                            7580
  


----------------------- Page 25-----------------------

 a prerequisite for relief based on attorney neglect under Rule 60(b)(6).                                                                   As Justice   



Rabinowitz wrote in his dissenting opinion in                                        Rill, in most cases "the client 'voluntarily             



 chose th[e] attorney as his representative . . . and [therefore] cannot . . . avoid the                                                                   

                                                                                                                                          67     But that  

 consequences of the acts and                              omissions of his freely                       selected  agent.'   "                           



rationale is unpersuasive "in cases in which the attorney has provided no representation  

                                                                                                                                       

 at all."68  The kind of attorney conduct that is grounds for relief under Rule 60(b)(6) must  

                                                                                                                                                        



be different not only in degree but also in kind from garden-variety neglect, whether  

                                                                                                                                                  



 excusable or inexcusable.  

                          



                         The record in this case does not establish abandonment that can justify  

                                                                                                                                             



relief from judgment. Bridges's attorneys failed to oppose Chena and Hardy's summary  

                                                                                                                                                



judgment request, but moved for reconsideration shortlyafter itwas grantedand opposed  

                                                                                                                                                  



 Chena's motion for final judgment.   They failed to respond to Banner's first set of  

                                                                                                                                                             



 discovery requests until compelled, but did ultimately respond, albeit with "severely  

                                                                                                                                               



 deficient" responses.  They were late in opposing Banner's summary judgment motion  

                                                                                                                                                    



 and requested an extension of time to oppose summary judgment, but then moved for  

                                                                                                                                                            



relief under Rule 60.  It is true that many of these filings were late, improperly served,  

                                                                              



 or  lacked  necessary  signatures  under  Rule  81(a)(2).                                              But  this  record  suggests  that  

                                                                                                                                                         



Bridges's  attorneys  failed  to  understand  both  Alaska's  procedural  rules  and  its  

                                                                                                                                                           



 substantive framework for medical malpractice; it does not suggest that they abandoned  

                                                                                                                                             



             66          (...continued)  



                                                                                                                                                     

presented, however, when an attorney abandons his or her client without notice; having  

                                                                                                                                                            

 severed the principal-agent relationship, the attorney no longer acts, or fails to act, as the  

                                                                                                              

 client's representative" and that [a]bandonment leaves the client responsible for his or  

                                                                                                       

her own conduct, but not for the attorney's conduct").  



             67          Rill  v.  State,  Dep't  of  Highways,  669  P.2d  573,  578  (Alaska  1983)  

                                                                                                                                                     

 (Rabinowitz, J., dissenting) (alterations in original)  (quoting Link, 370 U.S. at 633-34).  

                                                                                                                                                                   



             68          Id.  

                                



                                                                             -25-                                                                      7580
  


----------------------- Page 26-----------------------

their client.                     Bridges's attorneys did not cease acting as her agent.                                                                                                    Rather, they acted as                                 



her agent, but did so unsuccessfully.                                                                        This performance does not justify relief under                                                                            

                                         69      Bridges's remedy is not relief under Rule 60(b), but an action against  

Rule 60(b)(6).                                                                                                                                                                                                                      

her attorneys.70  

           



V.                 CONCLUSION  



                                      We therefore REVERSE the superior court's decision granting Bridges  

                                                                                                                                                                                                                                 



relief from judgment and REMAND for entry of judgment in favor of the defendants.  

                                                                                                                                                                                                                                                       



                   69                 Banner  also argues that 60(b)(6) relief is unavailable because Bridges                                                                                                                    



deliberately waited to respond to Banner's motion for summary judgment until she had                                                                                                                                                          

received expert affidavits. Because we reverse on a different ground, we need not reach                                                                                                                                                  

this argument.   



                   70                 See Rill, 669 P.2d at 576 n.1.  

                                                                                                                            



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