Harrison v. Thurston, 258 P.3d 665

Ember Harrison filed a negligence claim arising from a December 2002 car accident; represented by Matthew T. Graff & Associates.
Graff firm repeatedly missed discovery deadlines and failed to respond to communications; district court noted dilatory conduct and awarded Thurston expenses and fees on a summary judgment ruling.
On June 9, 2009, Graff was suspended; a court trustee took control of his files and planned to return active files to clients by June 30, 2009.
Harrison retrieved her file, consulted several attorneys, and retained new counsel who entered a limited appearance on September 3, 2009.
Thurston filed a Rule 41(b) dismissal for failure to prosecute on June 26, 2009; the district court granted dismissal on August 13, 2009, for lack of prosecution.
Harrison filed Rule 60(b) motions to set aside the dismissal; the first motion was a default judgment motion; the second asserted lack of representation and excusable neglect; the district court denied both, leading to this appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Rule 60(b) relief was an abuse of discretion given lack of counsel	Harrison lacked counsel when the 41(b) motion was filed and ruled on.	Graff remained counsel; Harrison was adequately represented for purposes of the dismissal.	Yes, district court abused discretion.
Whether Harrison shown excusable neglect meriting relief	Circumstances beyond Harrison's control, including Graff's suspension and trustee involvement, caused neglect.	Harrison must demonstrate personal diligence regardless of counsel issues.	Yes, excusable neglect shown given extraordinary and uncontrollable circumstances.
Whether the district court properly weighed diligence and prejudice	Record shows lack of control beyond Harrison's, warranting relief to decide on the merits.	Delay and lack of timely appearance favored denial to prevent prejudice.	No; the court erred in balancing these factors under 60(b).

Jones v. Layton/Okland, 214 P.3d 859 (Utah 2009) (rule 60(b) excusable neglect requires flexible, equitable analysis)
Menzies v. Galetka, 150 P.3d 480 (Utah 2006) (due diligence standard for excusable neglect; court notes control over circumstances)
Central Fin. Co. v. Kynaston, 452 P.2d 316 (Utah 1969) (abuse of discretion to deny relief where justification exists)
Airmek Intermountain Inc. v. Parker, 513 P.2d 429 (Utah 1973) (excusable neglect includes lack of control over events)
Katz v. Pierce, 732 P.2d 92 (Utah 1986) (doubtful denial should be resolved in favor of relief to obtain a hearing)