Clements v. 3M Electronic Monitoring
Filing
40
ORDER denying 34 Plaintiff's Motion for Reconsideration and Recusal. The Clerk is DIRECTED to transmit a copy of this Opinion and Order to the United States Court of Appeals for the Eleventh Circuit. Signed by Judge Sheri Polster Chappell on 9/21/2017. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LOUIS MATTHEW CLEMENTS,
Plaintiff,
v.
Case No: 2:16-cv-776-FtM-38CM
3M ELECTRONIC MONITORING,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Plaintiff pro se Louis Matthew Clements’
Appeal of Order to Dismiss and Motion to Recuse (Doc. 34) filed on July 6, 2017, which
the Court construes as a Motion for Reconsideration under Federal Rule of Civil
Procedure 60(b) of this Court’s June 29, 2017 Opinion and Order dismissing this case
with prejudice as time-barred. (Doc. 32). This filing was initially construed by the Court
as a Notice of Appeal to the Eleventh Circuit, and docketed as such (Doc. 34). See
Clements v. 3M Monitoring, USCA Number 17-13039-D. It was brought to the Court’s
attention that the Eleventh Circuit stayed the effectiveness of the Notice of Appeal
pending this Court’s resolution of the Motion for Reconsideration. See Fed. R. App. P.
4(a)(4).
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some other site does not affect the opinion of the Court.
“As a general matter, the filing of a notice of appeal deprives the district court of
jurisdiction over all issues involved in the appeal.” Mahone v. Ray, 326 F.3d 1176, 1179
(11th Cir. 2003) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)).
The filing of a notice of appeal does not, however, “prevent the district court from taking
action ‘in furtherance of the appeal,’” id. (quoting Lairsey v. Advance Abrasives Co., 542
F.2d 928, 930 (5th Cir. 1976)), nor from “entertaining motions on matters collateral to
those at issue on appeal,” id. (citation omitted). Even after the filing of a notice of appeal,
district courts retain jurisdiction to entertain or deny a Rule 60(b) motion because the
court’s action is in furtherance of the appeal.
Id. at 1180 (citation omitted).
The
jurisdiction is limited to denying the Rule 60(b) motion and “following the filing of a notice
of appeal district courts do not possess jurisdiction to grant a Rule 60(b) motion.” Id.
Accordingly, a district court presented with a Rule 60(b) motion after a
notice of appeal has been filed should consider the motion and assess its
merits. It may then deny the motion or indicate its belief that the arguments
raised are meritorious. If the district court selects the latter course, the
movant may then petition the court of appeals to remand the matter so as
to confer jurisdiction on the district court to grant the motion.
Id.
Therefore, because Plaintiff has filed his Motion for Reconsideration pursuant to
Rule 60(b), this Court has jurisdiction to entertain and deny the Motion or indicate its belief
the arguments are meritorious.
A. Reconsideration
The decision to grant a motion for reconsideration is within the sound discretion of
the trial court and will only be granted to correct an abuse of discretion. Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). “The
courts have delineated three major grounds justifying reconsideration of such a decision:
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(1) an intervening change in controlling law; (2) the availability of new evidence; (3) the
need to correct clear error or prevent manifest injustice.” Sussman v. Salem, Saxon &
Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).
Furthermore, a motion for
reconsideration does not provide an opportunity to simply reargue, or argue for the first
time, an issue the Court has already determined. Court opinions are “not intended as
mere first drafts, subject to revision and reconsideration at a litigant’s pleasure.” Quaker
Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). The
reconsideration of a previous order is an “extraordinary remedy” and “must set forth facts
or law of a strongly convincing nature to induce the court to reverse its prior decision.”
Ludwig v. Liberty Mutual Fire Ins. Co., Case No. 8:03-cv-2378-T-17-MAP, 2005 WL
1053691 at *3 (M.D. Fla. Mar. 30, 2005).
The Court has reviewed Plaintiff's Motion and determines that it is without merit.
Plaintiff does not identify new evidence, point to a change in controlling law or material
facts, or show that reconsideration is needed to correct clear error or prevent manifest
injustice.
B. Recusal
Plaintiff’s request to disqualify is based on 28 U.S.C. § 455. Under § 455,
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding;
...
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(4) He knows that he, individually or as a fiduciary, or his spouse or
minor child residing in his household, has a financial interest in the
subject matter in controversy or in a party to the proceeding, or any
other interest that could be substantially affected by the outcome of
the proceeding;. . . .
28 U.S.C. § 455. “The inquiry of whether a judge’s impartiality might reasonably be
questioned under § 455(a) is an objective standard designed to promote the public’s
confidence in the impartiality and integrity of the judicial process. [ ] Thus, the court looks
to the perspective of a reasonable observer who is informed of all the surrounding facts
and circumstances.” In re Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir. 2009)
(internal citations omitted) (emphasis in original). Adverse rulings are rarely grounds for
recusal. In re Walker, 532 F.3d 1304, 1311 (11th Cir. 2008) (citing Liteky v. United States,
510 U.S. 540, 554 (1994)). It is a “reasonable man standard” that is applied to determine
whether recusal is appropriate. Whitehurst v. Wright, 592 F.2d 834, 838 (5th Cir. 1979)2
(citations omitted).
The Court has reviewed the basis identified by Plaintiff for recusal and finds that a
reasonable person would not question the undersigned’s partiality under the
circumstances of this case. The Motion will be denied on this basis.
Accordingly, it is now
ORDERED:
(1) Plaintiff’s Motion for Reconsideration and Recusal (Doc. 34) is DENIED.
(2) The Clerk is DIRECTED to transmit a copy of this Opinion and Order to the
United States Court of Appeals for the Eleventh Circuit.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh Circuit
adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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DONE and ORDERED in Fort Myers, Florida this 20th day of September, 2017.
Copies:
United States Court of Appeals for the Eleventh Circuit
All Parties of Record
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