Shomarie Thurmond v. City of Detroit, et al

Filing

OPINION filed : All of appellant Thurmond s claims of error having been duly considered and denied, we AFFIRM the rulings and judgment of the district court, decision not for publication. Martha Craig Daughtrey, Circuit Judge; David W. McKeague, AUTHORING Circuit Judge and Richard Allen Griffin, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0333n.06
Case No. 13-1389

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SHOMARIE L. THURMOND,
Plaintiff-Appellant,
v.
WAYNE COUNTY SHERIFF DEPARTMENT,
et al.,
Defendants-Appellees.

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Apr 28, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

MEMORANDUM
OPINION

BEFORE: DAUGHTREY, McKEAGUE and GRIFFIN, Circuit Judges.
McKEAGUE, Circuit Judge. This is a second appeal from a judgment of the district
court in this case. The litigation involves numerous claims under federal and state law stemming
from plaintiff Shomarie L. Thurmond’s arrest and ensuing 35-day detention in Detroit in 2005.
In the first appeal, a panel of this court affirmed in part the lower court’s summary judgment
ruling in favor of defendant police officers and remanded for further proceedings. Thurmond v.
Wayne County, 447 F. App’x 643 (6th Cir. 2011). On remand, the district court again granted
summary judgment to defendants on the outstanding claims and granted defendants’ motion for
attorney’s fees. In this appeal, Thurmond does not directly challenge the summary judgment
rulings. Rather, the focus now is on defendants’ refusal to cooperate with discovery, which
Thurmond says prevented him from adducing evidence to forestall summary judgment. Hence,

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Case No. 13-1389, Thurmond v. Wayne County Sheriff Department, et al.
Thurmond appeals the district court’s post-judgment ruling that (1) denied his motion to vacate
judgment under Rule 60(b)(3); (2) denied his motion for imposition of sanctions; and
(3) awarded $4,080 in attorney’s fees to defendants. R. 144 Order dated 3/29/13, Page ID #
2950. For the reasons that follow, we affirm.
I
The case stems from plaintiff Shomarie L. Thurmond’s arrest in Detroit on April 7, 2005
and ensuing 35-day detention in jail.

Thurmond was undisputedly the victim of mistaken

identification, an error precipitated first and foremost by the actions of his cousin, LaBaron
Thurmond. LaBaron had falsely identified himself as Shomarie Thurmond when he was arrested
one year earlier, on April 15, 2004. LaBaron did not have a driver’s license or other personal
identification, but gave the arresting officers his cousin’s name. LaBaron’s identity was not
definitively confirmed. Consequently, LaBaron Thurmond was booked and then ordered to
appear on May 11, 2004 (to face charges for fleeing, eluding and resisting arrest) under the name
Shomarie Thurmond. When neither LaBaron nor Shomarie Thurmond appeared for the May 11
court date, a bench warrant issued for the arrest of Shomarie Thurmond. The warrant was
executed eleven months later. On April 7, 2005, Shomarie Thurmond was arrested and detained.
Twelve days later, on April 19, a preliminary examination was conducted. Michigan
State Police Trooper James Bunk testified that he had participated in the arrest of the suspect on
April 15, 2004, and that the defendant present in the courtroom, Shomarie Thurmond, was the
person he had arrested.

Trooper Bunk was subject to ineffectual cross-examination by

Thurmond’s counsel and no additional witnesses were called. Thurmond was bound over for
trial and remanded to custody, where he remained in jail until his mother posted bond in the
amount of $350 to obtain his release on May 11, 2005. The charges against Shomarie Thurmond

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were dismissed on July 26, 2005, when the Wayne County Prosecutor confirmed, upon
comparison of photographs of the two suspects, that the defendant in custody was not actually
the same person Trooper Bunk had arrested one year earlier after fleeing and resisting arrest.
This lawsuit followed. Originally filed in state court, the action was removed to federal
court in April 2007 based on federal question jurisdiction. In his second amended complaint,
Thurmond asserts state law claims for false arrest, false imprisonment and malicious prosecution,
as well as federal civil rights claims. Named as defendants are the Wayne County Sheriff
Department and Sheriff Deputies Rodgers, Mears and Jones; and Michigan State Police Troopers
Bunk and Crawford. Thurmond alleges that defendants, upon arresting and detaining him,
ignored his protestations of innocence and, due to their gross negligence, recklessness and
intentional misconduct, failed to conduct a reasonable investigation to ensure they had arrested
the person who committed the crime for which the bench warrant had issued.
The district court essentially granted summary judgment to all defendants on all claims,
denied Thurmond’s motion for default judgment (which he sought as a sanction for misconduct
by defendants in discovery), and awarded attorney’s fees to defendant Wayne County in
connection with a complaint filed by Thurmond in a separate action.

The court granted

defendants’ motions for summary judgment because Thurmond failed to oppose the motions on
the merits with evidence of actionable wrongdoing by any of the defendants. To the extent
Thurmond’s erroneous detention was attributable to Trooper Bunk’s false testimony at the
preliminary examination, the claims were held barred by absolute testimonial immunity. R. 87,
Order Dismissing Case at 7-8, Page ID # 1314-15. The court denied Thurmond’s motion for
default judgment, finding that although Thurmond had not been provided all the records he
requested, defendants had ostensibly provided all the records they possessed, and that, in any

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event, Thurmond had failed to show misconduct sufficiently serious to warrant default judgment
in his favor. Id. at 6-7, Page ID # 1313-14. The district court assessed attorney’s fees in the
amount of $4,080 to Thurmond’s attorney, Rick Martin, payable to the Wayne County
defendants, upon finding that Attorney Martin had engaged in “contumacious conduct” by filing
an “unviable and duplicative action” and unreasonably requiring the County to incur unnecessary
expenses in defending the action. E.D. Mich. No. 2:08-cv-10309, R. 12, Order Dismissing Case
at 4, Page ID # 317.
In Thurmond’s first appeal, a panel of this court affirmed in part and reversed in part.
The court affirmed the award of summary judgment in favor of all defendants on Thurmond’s
federal law claims, except Trooper Bunk. Thurmond, 447 F. App’x at 648-53. The court
reversed the dismissal of the state law claims against all defendants because the district court had
not explained their dismissal. The court also reversed the dismissal of the federal law claims
against Trooper Bunk because the claims were arguably based in part on malfeasance outside the
scope of testimonial immunity. The court also affirmed the denial of Thurmond’s motion for
default judgment without prejudice to his right to pursue other sanctions on remand. Id. at 647.
Finally, the court vacated the award of attorney’s fees pending explanation by the district court
of the legal basis for the award. Id. at 654.
On remand, after hearing oral arguments on June 15, 2012, the district court granted
defendants’ renewed motions for summary judgment in a ruling from the bench, thus disposing
of all outstanding claims against the defendants. R. 124, Order, Page ID # 2242. Again, the
district court held Thurmond had failed to adduce evidence creating a triable fact issue on any
essential element of any of his claims. In so ruling, the court declined to grant Thurmond the

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benefit of any adverse inference arising from defendants’ alleged refusals to comply with
discovery requests. This summary judgment ruling has not been challenged on appeal.
The day before the hearing on the summary judgment motions, Thurmond had filed a
renewed motion for imposition of sanctions, asking the court to award him attorney’s fees and
costs associated with defendants’ withholding of materials subject to discovery. A month later,
Thurmond relied on similar grounds in moving the court to vacate its summary judgment ruling
under Fed R. Civ. P 60(b)(3), contending the judgment was procured by fraud,
misrepresentation, or misconduct by defendants. The district court denied both motions on
March 29, 2013. R. 144, Order, Page ID # 2950. In the same opinion, the court reinstituted its
earlier order requiring Thurmond’s counsel to pay attorney’s fees in the amount of $4,080,
explaining that the fees were assessed under 28 U.S.C. § 1927. In this appeal, Thurmond
challenges each of these latter three rulings.
II
A. Motion to Vacate Judgment
The availability of relief from judgment under Rule 60(b)(3) is “circumscribed by public
policy favoring finality of judgments and termination of litigation.” Info-Hold, Inc. v. Sound
Merchandising, Inc., 538 F.3d 448, 454 (6th Cir. 2008) (quoting Blue Diamond Coal Co. v.
Trustees of UMWA Combined Benefits Fund, 249 F.3d 519, 524 (6th Cir. 2001)). Accordingly,
the party seeking relief under Rule 60(b)(3) bears the burden of showing entitlement to such
relief by clear and convincing evidence. Info-Hold, 538 F.3d at 454. Thurmond was thus
obliged to show by clear and convincing evidence that defendants deliberately engaged in some
act of fraud, misrepresentation or other misconduct that adversely affected the fairness of the
proceedings. Id. at 455.

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We review the district court’s denial of relief for abuse of discretion. Id. at 453-54. “A
court abuses its discretion when it commits a clear error of judgment, such as applying the
incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous
findings of fact.” Jones v. Illinois Central R. Co., 617 F.3d 843, 859 (6th Cir. 2010) (quoting In
re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008)). Thurmond contends the
district court misapplied the correct legal standard.
The grounds on which Thurmond seeks relief are not new to the case. The motion for
relief under Rule 60(b)(3) is substantially a repackaging of Thurmond’s motion for default
judgment, filed on February 29, 2008. R. 44, Motion for Default Judgment, Page ID # 461. That
is, the discovery abuses Thurmond complains of have received abundant judicial attention from
early on.
The magistrate judge first heard oral arguments on the motion for default judgment on
April 9, 2008. The magistrate judge concluded that the motion should be denied. The magistrate
judge determined that Thurmond had been granted more materials than he had requested and had
not been prejudiced by delays, as the discovery deadline was extended and additional depositions
were authorized. R. 66, Hearing Transcript, Page ID # 906. Subsequently, the district court,
after a second hearing, denied the motion for default judgment on December 29, 2008, in
conjunction with its original award of summary judgment to all defendants on all claims. R. 87,
Order Dismissing Case at 6-7, Page ID # 1313-14.
Insofar as Thurmond argued that defendants’ resistance to his discovery requests had
prevented him from adducing factual support for his claims, the district court was unsympathetic.
The court concluded that some of the records Thurmond requested simply were no longer
available, but that there was no evidence of improper spoliation of evidence; that some of the

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requested information could have been obtained by Thurmond in other ways, in the exercise of
reasonable diligence; and that Thurmond had failed to give non-speculative reasons to believe
any additional disclosures would materially support his claims against the named defendants. R.
89, Hearing Tr. at 1-61, Page ID # 1328-88.
The denial of the motion for default judgment was affirmed on appeal. Thurmond, 447 F.
App’x at 647. In the process, the case was remanded for further proceedings, not principally
because the district court’s rulings were found to be in error, but because some aspects of the
rulings were ill-explained (i.e., dismissal of the pendent state law claims, dismissal of the claims
against Trooper Bunk to the extent some bases of the claims were beyond the protection of
testimonial immunity, and legal authority for imposition of sanctions on Thurmond’s attorney).
Thus, when this case was last remanded, the discovery abuses complained of by Thurmond had
been considered by the magistrate judge, and by the district judge in relation to both Thurmond’s
motion for default judgment and defendants’ motions for summary judgment, and their
determinations that such misconduct had not materially affected adjudication of the merits were
upheld on appeal.
On remand, the district court established a dispositive motion deadline of December 21,
2011. Thurmond timely filed a motion to remand the state law claims to state court. The district
court denied the motion, opting to continue exercising supplemental jurisdiction under 28 U.S.C.
§ 1367.

R. 121, Order, Page ID # 2213.

Defendants timely filed motions for summary

judgment. Thurmond opposed, contending that Trooper Bunk’s questionable testimony and
defendants’ flagrant abuses of the discovery process precluded summary judgment. That is, even
though we had already upheld the district court’s application of testimonial immunity and denial
of default judgment, Thurmond continued to resist summary judgment on the same failed

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grounds. This time, however, Thurmond argued that defendants’ discovery abuses warranted
sanctions in the form of adverse inferences and preclusion of evidence. Defendants maintained
that apart from Trooper Bunk’s erroneous testimony, for which he was immunized, none of the
named defendants was ever in such a position as to have had the duty to uncover either the fraud
in LaBaron’s false identification of his cousin or the error in Trooper Bunk’s testimony.
The district court heard arguments on June 15, 2012, some five years after the case was
commenced. The court gave Thurmond’s counsel opportunity to identify evidence of alleged
wrongdoing by each of the five named defendants, one by one, but he was unable to do so. R.
128, Hearing Tr., Page ID # 2342. Instead, he continued to rely on arguments to the effect that if
the transcript of the preliminary examination had been earlier disclosed, or if the prosecution file
had not been prematurely destroyed, or if the complete contents of the warrant packet had been
disclosed, then he might have uncovered evidence showing who knew about Thurmond’s
assertion that the wrong man had been arrested. Unconvinced by speculative arguments that
further proceedings might yield grounds to believe the named defendants were liable for the
misidentification, the court ruled from the bench, granting all defendants summary judgment on
all outstanding claims. To the extent Thurmond’s claims against Trooper Bunk depended on
allegations of malfeasance outside the scope of testimonial immunity, the court concluded that
Thurmond had shown no more than negligence. The court’s summary judgment ruling was
memorialized in a one-page order on June 19, 2012, “for the reasons stated on the record.” R.
124, Order, Page ID # 2242. Thus, again, the district court considered the impact of alleged
discovery abuses in adjudicating the merits of Thurmond’s claims and ruled against Thurmond
again. This summary judgment ruling has not been challenged on appeal.

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Case No. 13-1389, Thurmond v. Wayne County Sheriff Department, et al.
Yet, the case was still not over. The court noted in the June 15 hearing that Thurmond
had just filed a renewed motion for sanctions the day before. This motion sought recovery of
attorney’s fees incurred by Thurmond in responding to defendants’ abuses of the discovery
process. R. 123, Renewed Motion, Page ID # 2220. It had not been noticed for hearing, so
consideration of the renewed motion for sanctions was deferred until after defendants were able
to file a written response.

The court also deferred ruling on the County defendants’

memorandum regarding the legal basis for the court’s earlier award of $4,080 in attorney’s fees.
In the meantime, the court suggested the parties try to resolve their remaining differences.
There would be no such negotiated resolution.

Even before defendants filed their

response to the renewed motion for sanctions, Thurmond had moved to vacate the summary
judgment ruling under Rule 60(b)(3).

Thus, again, without challenging the merits of the

summary judgment rulings, in which all of his claims had been adjudicated and found wanting,
Thurmond continued to trumpet the same asserted discovery abuses that had already been
addressed and dismissed multiple times, as grounds for new and different forms of relief.
Without conducting a further hearing, the district court decided the remaining issues in a twelvepage opinion on March 29, 2013. R. 144, Order, Page ID # 2950. The court addressed each of
six main grievances and explained why none of them warranted relief, under Rule 60(b)(3) or in
the award of attorney’s fees to Thurmond.
Given this summary of the tortured procedural history, we now turn to the present
question, i.e., whether Thurmond has shown an abuse of discretion in the district court’s
determination that he failed to show, by clear and convincing evidence, such fraud or misconduct
adversely affecting the fairness of the proceedings as to warrant vacating the summary judgment
rulings---where the grounds asserted are substantially the same grounds already addressed and

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rejected by the district court both in previously denying Thurmond’s motion for default judgment
and in granting defendants’ motions for summary judgment. The motion for Rule 60(b)(3) relief
is supported by more thorough briefing, but is not based on any new revelations of misconduct or
any intervening change in controlling law. It is thus, in effect, a substitute for a motion to alter
or amend judgment under Fed. R. Civ. P. 59(e), a motion that would have been denied as
untimely and meritless. See Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (stating
that Rule 59(e) motion cannot be used as a vehicle to re-argue a case or to present new
arguments that could have been raised prior to judgment); Roger Miller Music, Inc. v. Sony/ATV
Publishing, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (same).
Yet, neither does naming it a Rule 60(b)(3) motion for relief from judgment legitimize
Thurmond’s continued protraction of these proceedings by re-arguing issues already raised and
decided. Ordinarily, Rule 60(b) relief is not available to remedy misconduct known to the
movant before judgment entered. See Jones v. Illinois Central R. Co., 617 F.3d 843, 851-52 (6th
Cir. 2010).

Here, not only were the complained of instances of misconduct known to

Thurmond’s counsel prior to judgment, but they were persistently asserted as grounds for relief
and repeatedly addressed by the district court. The notion that the district court can be made, via
different procedural vehicles, to repeatedly revisit issues already decided, runs afoul of the “law
of the case” doctrine. See Bowles v. Russell, 432 F.3d 668, 676-77 (6th Cir. 2005) (“The law of
the case doctrine generally discourages courts from reconsidering determinations that the court
made in an earlier stage of the proceedings.” (quoting United States v. Graham, 327 F.3d 460,
464 (6th Cir. 2003))). Moreover, the notion that the very same discovery abuses that have been
held (1) not to warrant default judgment (as affirmed on appeal), and (2) not to forestall
summary judgment (as affirmed on appeal in part and otherwise not challenged on appeal),

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nonetheless justify vacating the judgment is facially implausible---especially where Thurmond
remains unable to identify how the misconduct materially prejudiced prosecution of his claims
against the named defendants.
Thurmond insists that he need not show prejudice to obtain relief under Rule 60(b)(3). It
is enough, he argues, to demonstrate that defendants’ counsel made misrepresentations that
interfered with the orderly progress of discovery. Indeed, Thurmond need not show that he
would have been entitled to judgment in his favor but for defendants’ counsel’s
misrepresentations; only that the misconduct “adversely affected the fairness of the
proceedings.” Info-Hold, 538 F.3d at 455. The district court applied this standard and we find
no abuse of discretion in the district court’s holding that Thurmond failed to make the required
showing.
In its March 29, 2013 opinion, the district court addressed each of the discovery abuses
that Thurmond now cites on appeal. R. 144, Order, Page ID # 2950. The district court held that
defendants’ counsel’s apparent misrepresentation about his not having possession of the six-page
transcript of the July 26, 2005 hearing (at which the criminal charges against Thurmond were
dismissed) did not adversely affect the fairness of the proceedings because the transcript was a
public record available to Thurmond’s counsel on request and, in any event, the transcript does
not reveal, as Thurmond hoped, the identity of the officer(s) who arrested him. Thurmond insists
that counsel’s misconduct constitutes an impermissible withholding and concealment that
warrants relief under Rule 60(b)(3) irrespective of the transcript’s availability and irrespective of
the materiality of its contents.

We disagree.

While counsel’s misrepresentation, whether

inadvertent or deliberate, is regrettable, there is no reason to believe it adversely affected
Thurmond’s ability to prosecute his claims.

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The district court also found no grounds for relief in defendants’ failure to produce the
Michigan State Police Fugitive Arrest Team Report, even though it had been listed as a trial
exhibit by counsel for the County defendants. Thurmond faults the district court for accepting
unsworn statements by (1) the State Troopers’ counsel that no such report existed; and (2) the
County defendants’ counsel that the report was mistakenly listed as an exhibit based on an
erroneous assumption that the State Police had arrested Thurmond. Thurmond insists that an
evidentiary hearing is required to ascertain the truthfulness of counsel’s statements. Again, we
find no abuse of discretion in the court’s acceptance of counsel’s assurances at face value.
Thurmond has presented no grounds for belief that any such fugitive arrest team report does in
fact exist or that counsel’s statements are misrepresentations.
The district court rejected Thurmond’s argument that the prosecutor’s warrant request
packet was wrongfully withheld. Thurmond was not satisfied that the County defendants had
disclosed all materials relating to the arrest of LaBaron Thurmond for fleeing and eluding arrest
in 2004. Based on Trooper Bunk’s description of the usual contents of a warrant packet, “if
applicable,” Thurmond insists that some documents that should have been included in the packet
were not disclosed (e.g., suspect’s driving history and criminal history).

Again, the court

accepted counsel’s representation that all available records (i.e., incident reports, investigator’s
report, abandoned vehicle report and other supplemental documents) had been produced.
Thurmond’s suppositions about what other materials should have been included and his
speculation about their materiality to his claims simply do not amount to clear and convincing
evidence of misconduct adversely affecting the fairness of this litigation.
Thurmond has persistently complained about the “premature” destruction of the Wayne
County Prosecutor’s file. Even though this lawsuit was commenced some twenty months after

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the charges against him were dismissed, and even though the undisputed record evidence shows
that prosecution files in dismissed cases are not archived, but are routinely destroyed after a
sixty-day retention period, Thurmond insists the record does not establish that his file was in fact
destroyed.

If it was not destroyed, he contends, defendants’ withholding of it constitutes

misconduct. Again, we find no abuse of discretion in the district court’s determination that
Thurmond has failed to show entitlement to relief under Rule 60(b)(3) by clear and convincing
evidence.
Finally, Thurmond challenges the district court’s failure to grant relief based on the
County defendants’ counsel’s unjustified delay in producing jail records. Although the given
reasons for some of the delays are questionable, the district court held that Thurmond had not
presented clear and convincing evidence of deliberate misconduct. Further, it appears that all
requested records were ultimately disclosed well before the expiration of the extended discovery
period.

Thurmond argues that the delayed production nonetheless hindered his attorney’s

effective examination of various deponents. However, the record does not show how the delays
adversely affected the fairness of the litigation. We cannot therefore find that the district court
abused its discretion.
In conclusion, it is clear that Shomarie Thurmond was the victim of mistaken
identification.

It is also clear that his arrest and detention, in connection with an offense

committed by his cousin LaBaron Thurmond, are causally linked to two undisputed facts. First,
upon being arrested in April 2004, LaBaron falsely gave police officers his cousin’s name and
LaBaron was booked and detained under the name Shomarie Thurmond. When a related bench
warrant was subsequently issued and then executed in April 2005, it was Shomarie, not LaBaron,
who was arrested and his assertion of his innocence, not an unusual circumstance, was paid little

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heed. Second, at the ensuing preliminary examination twelve days later, the only witness,
Trooper Bunk, testified under oath and to the best of his recollection, but erroneously, that the
man then in the courtroom at counsel table was the same man he arrested a year earlier.
These two facts causally contributed to Thurmond’s arrest and detention until he was
released on bond shortly after the preliminary examination. None of the named defendants can
be held liable for the harm caused by the above two facts. Thurmond has vigorously endeavored
to uncover evidence of other actionable wrongdoing by the defendants. Defendants’ counsel
responded in ways not satisfactory to Thurmond and the ensuing discovery disputes required
judicial supervision and management from early on. The effects of those disputes were argued
by the parties and fully considered by the district court in relation to both of its summary
judgment rulings, the merits of which are not before us. The rulings that Thurmond ultimately
failed to adduce evidentiary support for his claims are not challenged. Still, Thurmond relies on
substantially the same discovery disputes in now urging us to find the district court abused its
discretion when it refused to vacate its judgment and allow further proceedings on the failed
claims---even though there is still, several years later, no evidence that any of the defendants
causally contributed to Thurmond’s injuries in an actionable way.
Considering this history and for the reasons detailed above, we find no grounds for
holding that Thurmond was denied a fair opportunity to litigate his claims. There are no valid
grounds for disturbing the finality of the judgment in this case. The district court did not abuse
its discretion in denying Thurmond’s motion for relief from judgment under Rule 60(b)(3).
B. Renewed Motion for Sanctions
Thurmond also challenges the district court’s denial of his renewed motion for sanctions,
in the form of attorney’s fees, for defendants’ discovery abuses. Thurmond contends the district

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court conflated and misapplied the applicable standards of review when it addressed the motion
for sanctions in conjunction with the motion for relief from judgment. We review for abuse of
discretion. See Universal Health Group v. Allstate Ins. Co., 703 F.3d 953, 955-56 (6th Cir.
2013); Bentkowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2011). Under this standard,
we will reverse only if firmly convinced that a mistake affecting substantial rights has been
made. Dortch v. Fowler, 583 F.3d 396, 400 (6th Cir. 2009).
Yes, the district court ruled on the two motions at the same time and found it convenient
to consolidate its analysis of the two motions in the same opinion. R. 144, Order, Page ID #
2950. It was sensible to do so.
Recall the chronology. When the denial of Thurmond’s motion for default judgment
(based on discovery abuses) was affirmed on appeal, the panel expressly noted that the
affirmance was without prejudice to Thurmond’s right to pursue other sanctions on remand.
Thurmond, 447 F. App’x at 647. Yet, Thurmond did not file his renewed motion for sanctions
until June 14, 2012, one year after the appellate ruling, six months after the dispositive motion
cut-off set by the district court on remand, and one day prior to the scheduled hearing on
defendants’ motions for summary judgment. The district court refrained from considering the
motion for sanctions at the June 15 hearing and instead deferred consideration until defendants
had the opportunity to respond. Hence, the motion for sanctions in the form of attorney’s fees
was not addressed until months after the court had already awarded summary judgment to
defendants on all outstanding claims. In granting defendants’ motions for summary judgment,
the court had already rejected many of Thurmond’s discovery-abuse arguments for a second or
third time. And by the time the court took up the renewed motion for sanctions, Thurmond had
also filed his motion to vacate judgment under Rule 60(b)(3) based on substantially similar

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grounds. It was therefore sensible for the court to take up the motions together and, in doing so,
the court correctly acknowledged the respective standards of review, each motion being
committed to its discretion, but only the motion for Rule 60(b)(3) requiring clear and convincing
evidence. R. 144, Order at 4-6, Page ID # 2953-55.
As the court proceeded to analyze each of the most serious instances of alleged
misconduct and failed to find, in the exercise of its discretion, that any of them justified relief
from judgment, it is unsurprising that the court also found, in the exercise of its discretion, that
none of the misconduct warranted post-judgment imposition of sanctions in the form of
attorney’s fees. Nor has Thurmond persuaded us that the district court, despite the imprecision
of its explanation, abused its discretion in any way. Considering the district court’s greater
familiarity with the lawyers and their ongoing relations, its judgment in managing discoveryrelated obligations is entitled to great deference. Just as Thurmond has failed to show that any
alleged misconduct by defendants’ counsel adversely affected the fairness of the litigation, he
has also failed to firmly convince us the district court, by refusing to award him attorney’s fees,
made an error of judgment that affected his substantial rights. Although defendants’ counsel’s
conduct may have made discovery more difficult, it is evident for the reasons set forth above that
Thurmond ultimately had a fair opportunity to substantiate his claims.
C. Re-Imposition of Attorney’s Fees Sanction
On remand, the district court re-imposed the sanction of attorney’s fees in the amount of
$4,080 on Thurmond’s counsel. The court based the sanction on its finding, under 28 U.S.C.
§ 1927, that Thurmond’s counsel had engaged in contumacious conduct when he unreasonably
and vexatiously multiplied proceedings. The offensive conduct consisted of counsel’s January
22, 2008 filing of an “unviable and duplicate” complaint in a new action, Thurmond v. Wayne

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Document: 54-1

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Case No. 13-1389, Thurmond v. Wayne County Sheriff Department, et al.
County, et al., E.D. Mich. No. 2:08-cv-10309, based on the same occurrences that are the subject
of the instant action. R. 144, Order at 11-12, Page ID # 2960-61. This filing was deemed to
have caused counsel for Wayne County, one of the named parties common to both actions, to
incur unnecessary expenses in defending against the new action by filing a motion to dismiss and
a motion for sanctions, before Thurmond’s counsel finally stipulated to dismiss the complaint in
December 2008.

We review for abuse of discretion.

Red Carpet Studios Div. of Source

Advantage, Ltd. v. Sater, 465 F.3d 642, 644 (6th Cir. 2006).
Thurmond’s counsel does not contend there was any legitimate purpose for filing the new
action. Rather, he contends the court lacked jurisdiction to impose the sanction and that the
County’s expenses were not reasonably incurred, because the new complaint was never served
on any of the defendants. Irrespective of the court’s personal jurisdiction over the named
defendants in the new action, the court clearly had jurisdiction, as a collateral matter, to impose a
sanction under 28 U.S.C. § 1927 on an attorney appearing before it who abused the judicial
process. See Red Carpet Studios, 465 F.3d at 644-45.

We flatly reject the jurisdictional

challenge.
Nor do we find any abuse of discretion in the imposition of the sanction. Thurmond’s
counsel had ignored opposing counsel’s reasonable requests to voluntarily withdraw the
complaint, necessitating the filing of a motion to dismiss and motion for sanctions. Thurmond’s
counsel had also failed, without excuse, to timely comply with the court’s order to file written
responses to the two motions. E.D. Mich. No. 2:08-cv-10309, R. 4, Order to Respond, Page ID #
275. He finally agreed to voluntarily dismiss the complaint only after being confronted by the
district court in a hearing on December 9, 2008, eleven months after the complaint was filed.
E.D. Mich. No. 2:08-cv-10309, R. 18, Hearing Tr., Page ID # 343. We find no error in the

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Case No. 13-1389, Thurmond v. Wayne County Sheriff Department, et al.
district court’s ruling that Thurmond’s counsel needlessly and unreasonably multiplied
proceedings. The sanction imposed is measured and not unreasonable.
III
Accordingly, all of appellant Thurmond’s claims of error having been duly considered
and denied, we AFFIRM the rulings and judgment of the district court.

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