Orton v. Mathews et al

Filing 30

MEMORANDUM OPINION-RE: Motions to Vacate 28 & 29 . Signed by Judge R David Proctor on 12/3/2013. (AVC)

FILED
2013 Dec-03 PM 03:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ED ORTON,
Plaintiff,
v.
SANDY MATTHEWS, et al.,
Defendants.

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Case No.: 7:13-CV-00515-RDP

MEMORANDUM OPINION
This case is before the court on Plaintiff’s Motions to Vacate (Docs. #28 & #29), filed on
November 18 and 22, 2013. For the reasons outlined below, the Motions (Docs. #28 & #29) are
due to be denied.
I.

Background
Plaintiff Ed Orton (“Plaintiff”) initiated this suit by filing a complaint in the Circuit Court

of Pickens County, Alabama (Doc. #1, Ex. 1) on January 9, 2013. Defendant Bank of America,
N.A. (“Defendant Bank”) removed the case to the United States District Court for the Northern
District of Alabama by filing a Notice of Removal (Doc. #1) on March 18, 2013, and, thereafter,
Plaintiff filed an Amended Complaint (Doc. #9), in which he sought to quiet title to property
located at 16095 Highway 17, Aliceville, AL 35442 (Doc. #9 at ¶ 1). Defendant Bank responded
to Plaintiff’s Amended Complaint (Doc. #9) by filing a Motion to Dismiss (Doc. #11) on May 6,
2013. The court granted Defendant Bank’s Motion (Doc. #11) on November 1, 2013 (Doc. #22),
determining that Plaintiff failed to state a claim against Defendant Bank (Doc. #21).
Following the original Complaint (Doc. 1, Ex. 1), Plaintiff made little effort to advance
his suit against Defendant Sandy Matthews (“Defendant Matthews”), and Defendant Matthews

made no appearance in the case. Plaintiff’s lack of activity and Defendant Matthew’s failure to
appear highlighted an issue about the adequacy of service as to Defendant Matthews, prompting
the court to issue a Show Cause Order (Doc. #20) on October 31, 2013. The court found
Plaintiff’s Response to Show Cause Order (Doc. #24) to be insufficient, and, as such, entered an
Order of Dismissal (Doc. #25) on November 13, 2013, dismissing without prejudice Plaintiff’s
claim against Defendant Matthews.
On November 18, 2013, Plaintiff filed an Answer to Order of Dismissal and Motion to
Vacate (Doc. #28), seeking to vacate the court’s dismissal of Plaintiff’s claim against Defendant
Matthews. In the Motion (Doc. #28), Plaintiff argues that vacatur is proper because Defendant
Matthews has indeed been served. Plaintiff attached as proof thereof a copy of a certified mail
receipt bearing Sandy Matthews signature. In addition, on November 22, 2013, Plaintiff filed a
Motion to Vacate (Doc. #29) the court’s Order of Dismissal (Doc. #22) as to Plaintiff’s claims
against Defendant Bank.
II.

Standard of Review
Although not invoked in Plaintiff’s Answer to Order of Dismissal and Motion to Vacate

(Doc. #28) and only mentioned in passing in Plaintiff’s Motion to Vacate (Doc. #29 at 4), the
court understands Plaintiff’s Motions (Docs. #28 & #29) to be rooted in Rule 60(b), which
allows a party to seek relief from a final judgment in a civil case for certain reasons, including
mistake, excusable neglect, newly discovered evidence, and fraud. Serrano, 411 Fed.Appx. at
254 (citing Fed.R.Civ.P. 60(b)). "A 'significantly higher' standard is generally used to decide
whether a movant is entitled to relief under Rule 60(b)." Vanderberg v. Donaldson, 259 F.3d
1321, 1326 (11th Cir. 2001). "Rule 60(b), ... states that 'the court may relieve a party or a party's
legal representative from a final judgment, order, or proceeding for the following reasons ....'"
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Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir.), cert. denied, 549 U.S. 972 (2006) (quoting
Fed.R.Civ.P. 60(b)) (emphasis added). "It is well established ... that relief under Rule 60(b)(6) 'is
an extraordinary remedy which may be invoked only upon a showing of exceptional
circumstances.'" Rease v. Harvey, 376 Fed. Appx. 920, 921 (11th Cir. 2010) (quoting Griffin v.
Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984)). "Under [Rule 60(b)(6)], '[t]he party
seeking relief has the burden of showing that absent such relief, an ‘extreme’ and ‘unexpected’
hardship will result.'" Id. (quoting Griffin, 722 F.2d at 680).
Rule 60(b) provides that a court may relieve a party from a final judgment, order, or
proceeding for the following reasons:
(1)
(2)
(3)
(4)
(5)

(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
any other reason that justifies relief.

Fed.R.Civ.P. 60(b). Although subsection six of Rule 60 authorizes relief for "any other reason
justifying relief from the operation of the judgment," a Rule 60(b)(6) motion "must demonstrate
that the circumstances are sufficiently extraordinary to warrant relief. Even then, whether to
grant the requested relief is ... a matter for the district court's sound discretion." Cano, 435 F.3d
at 1342. Relief under Rule 60(b)(6)'s catch-all provision "is an extraordinary remedy which may
be invoked only upon a showing of exceptional circumstances. The party seeking relief has the
burden of showing that absent such relief, an 'extreme' or 'unexpected' hardship will result."
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). Although Rule 60(b) "give[s]
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the court the power to set aside a judgment whose integrity is lacking ... [it] do[es] not provide ...
a means for litigants to obtain the district court's reconsideration of the claims and defenses its
judgment adjudicated." Gonzalez v. Secretary for Dept. of Corrections, 366 F.3d 1253, 1294-95
(11th Cir. 2004).
III.

Discussion
Because Plaintiff’s Motions (Docs. #28 & #29) fail to meet Rule 60(b)’s standard for

vacatur, they are due to be denied, preserving the court’s orders of dismissal (Docs. #22 & #25)
in their original state.
A. Plaintiff’s Motion to Vacate the Court’s Order of Dismissal as to Defendant
Matthews Is Due to be Denied
In his Motion to Vacate (Doc. #28), Plaintiff seeks to vacate the Order of Dismissal (Doc.
#25) entered as to Defendant Matthews, which dismissed Plaintiff’s claim without prejudice for
failure to perfect service within the timeframe provided for by Rule 4(m) of the Federal Rules of
Civil Procedure. By presenting the court with evidence that Defendant Matthews was timely and
properly served (Doc. #28 at 3), it appears that Plaintiff is attempting to invoke Rule 60(b)(2),
which permits the court to vacate an order upon the presentation of newly discovered evidence.
“[R]elief under 60(b)(2) based on newly discovered evidence requires all of the
following: (1) the evidence must be newly discovered since the [order of dismissal]; (2) the
movant must have exercised due diligence in discovering the new evidence; (3) the evidence
cannot be merely cumulative or impeaching; (4) the evidence must be material; and (5) the new
evidence must be such that it would produce a different outcome in the underlying action.”
Williams v. North Florida Regional Medical Center, Inc., 164 Fed.Appx. 896, 898-99 (11th Cir.
2006) (citing Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003)).
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Although the evidence (a certified mail receipt signed by Sandy Matthews) presented in
Plaintiff’s Motion is new in the sense that it has not previously been submitted to this court for
evaluation, it is not “newly discovered” within the meaning of the first element of the Eleventh
Circuit’s Rule 60(b)(2) test. See id. Indeed, having been notified by “the Court clerk of Pickens
County in March” that service of Defendant Matthews had been successfully completed (Doc.
#28 at 1), Plaintiff was fully aware that the Circuit Clerk of Pickens County was in possession of
some sort of proof of service as to Defendant Matthews. When confronted with this court’s
October 31, 2013 Show Cause Order (Doc. #20), Plaintiff should have contacted the Circuit
Clerk of Pickens County and obtained sufficient evidence of service. Plaintiff clearly failed to
do so, and his attempt to now present the court with new evidence, however persuasive, does not
constitute grounds for vacatur under Rule 60(b)(2).
Plaintiff’s Motion (Doc. #28) also fails when evaluated under the catch-all provision
contained in Rule 60(b)(6), which allows an order to be vacated for “any other reason that
justifies relief.” As noted above, Rule 60(b)(6) is an “extraordinary remedy” that is only
applicable when the movant demonstrates that “an ‘extreme’ or ‘unexpected’ hardship will
result” from failure to vacate the order at issue. Griffin, 722 F.2d at 680. Here, no such hardship
exists. Plaintiff’s claim against Defendant Matthews was dismissed without prejudice, meaning
that Plaintiff is entitled to assert the same claim again in a new suit. Far from being a hardship,
the dismissal without prejudice actually serves Plaintiff’s interests quite well—it permits him to
re-file his suit in state court. Therefore, Plaintiff is not only able to return to the court of his
original choosing, but he is also given the chance to litigate his state law, quiet title action in a

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court more commonly tasked with evaluating such claims. 1 Because he lacks the potential
prejudice necessary to activate Rule 60(b)(6), Plaintiff is unable to maintain his Motion (Doc.
#28) under the catch-all provision.
B. Plaintiff’s Motion to Vacate the Court’s Order of Dismissal as to Defendant
Bank Is Due to be Denied
In a separate Motion to Vacate (Doc. #29), Plaintiff also attempts to vacate the court’s
Order of Dismissal (Doc. #22) as to Defendant Bank. Consisting primarily of arguments and
assertions recycled from Plaintiff’s Amended Complaint (Doc. #9), the Motion (Doc. #29) fails
to set forth a persuasive reason for the court to vacate its previous order.
Because Plaintiff’s Motion (Doc. #29) does not fall within any of Rule 60(b)’s
enumerated bases for vacatur, it is most appropriately evaluated under Rule 60(b)(6)’s safety-net
provision. Amounting as it does to a “Hail Mary” remedy, a Rule 60(b)(6) motion will only be
successful if it demonstrates “that the circumstances are sufficiently extraordinary to warrant
relief.” Cano, 435 F.3d at 1342. In instant case, Plaintiff’s Motion (Doc. #29) wholly fails to
meet this elevated standard. Indeed, the Motion simply restates Plaintiff’s position that the
separation of the Mortgage Note and Deed renders Defendant Bank’s interest in the underlying
property void. (Doc. #29 at 1-4). Finding no basis in the law for such a theory, the court
previously dismissed with prejudice Plaintiff’s claim against Defendant Bank. (Doc. #22). No
circumstances have been brought to the court’s attention that would warrant re-evaluation of this
previous ruling, and, as such, Plaintiff’s Motion (Doc. #29) is due to be denied.

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Indeed, Plaintiff would be wise to redirect his litigation to a state forum. State courts have more
experience than federal courts in dealing with quiet title actions, and the Circuit Court of Pickens County (the proper
state venue in this case) is advantageously situated to adjudicate the case, as it has immediate access to witnesses,
evidence, and the underlying property. Combined, these factors likely promote a more prompt and accurate
resolution of the controversy than could be found in federal court, and should encourage Plaintiff to further pursue
his claim against Defendant Matthews at the state level.

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IV.

Conclusion
For the reasons stated above, Plaintiff’s Motions to Vacate (Docs. #28 & #29) are due to

be denied.
DONE and ORDERED this ____3rd_____ day of December, 2013.

_______________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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