Clements v. 3M Electronic Monitoring

Filing 63

OPINION AND ORDER re: denying 61 MOTION for miscellaneous relief, specifically to file PROPOSED Third Amended Complaint, denying 60 MOTION for relief from judgment re 32 Order on motion to dismiss Order on Motion for Miscellaneous Relief, 33 Judgment. 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 6/7/2019. (SLU)

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’
Opposed Motion for 60(b) Relief from Judgment and Stay of Effectiveness of Appeal and
Leave to File Third Amended Complaint (Docs. 60, 61) filed on May 21 and 24, 2019.
Defendant filed an Omnibus Response in Opposition (Doc. 62) on June 4, 2019. For the
reasons set forth below, the Motion is denied.
BACKGROUND
This is a products liability case in which the Court determined that Plaintiff’s claims
were time barred and the Second Amended Complaint was dismissed with prejudice on
June 29, 2017. (Doc. 32). In its Order of dismissal, the Court did not address Clements’
request to amend his complaint to add a claim for intentional infliction of emotional

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distress. After dismissal, Plaintiff filed a Federal Rule 60(b) Motion for Reconsideration
and Recusal, arguing that his claims were not time barred due to the doctrines of
continuing tort, delayed discovery, equitable estoppel, and equitable tolling. (Doc. 34).
Notably, Clements’ Rule 60(b) Motion made no mention that the Court failed to consider
his request to amend his complaint to add a claim for intentional infliction of emotional
distress. The Court denied the request for reconsideration on September 21, 2017. (Doc.
40).
On May 31, 2018, the Eleventh Circuit affirmed this Court’s dismissal of Clements’
case holding that failure to allege physical harm to his person or property was fatal to his
products liability claims. (Doc. 45). Based on that reasoning, the Eleventh Circuit did not
address this Court’s determination that his claims were time barred. The Eleventh Circuit
further noted that Clements failed to argue on appeal that the District Court erred in
denying him leave to amend his complaint to allege a claim for intentional infliction of
emotional distress. (Doc. 45, at 5).
On August 16, 2018, Plaintiff filed a second Rule 60(b) Motion for Reconsideration,
arguing for the first time that the Court should reconsider its Order of dismissal and
provide him the opportunity, after appeal, to amend the complaint to allege a claim for
intentional infliction of emotional distress. Plaintiff argued for the first time ever in this
litigation that negligent infliction of emotional distress should also be considered. (Doc.
49). The Court denied reconsideration on September 5, 2018. (Doc. 51). Plaintiff
appealed.
On May 3, 2019, the Eleventh Circuit affirmed this Court’s decision, finding: (1)
that Plaintiff’s second Rule 60(b) motions were “improper substitutions for a timely and

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proper appeal”; (2) that “Clements had the opportunity to challenge the district court’s
failure to address his motion for leave to amend both in his initial motion for
reconsideration and during his first appeal to this Court. He did not.”; and (3) that “Rule
60(b) may not be used to challenge mistakes of law which could have been raised on
direct appeal”. (Doc. 58). The Eleventh Circuit then expressly stated that “Rule 60(b)(6)
[does not] offer a path forward for Clements here.” (Doc. 53, at 5). Plaintiff’s appeal is
still pending before the Eleventh Circuit as he has petitioned the court for rehearing en
banc.
Plaintiff now comes before the Court with a third Rule 60(b) motion, requesting that
the Court reconsider its June 29, 2017 Order (Doc. 32) and grant him leave to amend his
complaint, arguing fundamental error, severe prejudice, and exceptional circumstances.
JURISDICTION AND STANDARD OF REVIEW
A. Jurisdiction

“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.

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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.
B. Standard of Review
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:
(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.”

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Ludwig v. Liberty Mutual Fire Ins. Co., Case No. 8:03-cv-2378-T-17-MAP, 2005 WL
1053691, *3 (M.D. Fla. Mar. 30, 2005).
DISCUSSION
Clements cannot use a third, untimely Rule 60(b) motion as a substitute for failing
to seek relief on appeal. “A party may not use Rule 60 as a substitute for a timely and
proper appeal.” Parks v. U.S. Life and Credit Corp., 677 F.2d 838, 840 (11th Cir. 1982);
Cavaliere v. Allstate Ins. Co., 996 F.2d. 1111, 1115 (11th Cir. 1993) (same). “A motion
for relief may not be used by the losing party in the district court to circumvent the
jurisdictional requirement that he appeal the merits of the underlying judgment within thirty
days.” Miller v. Morris Communications Co., LLC, 234 F. App’x 881 (11th Cir. 2007) (party
could not file Rule 60(b) motion five months after judgment to substitute for his failure to
timely appeal already-litigated issues). As stated by the Eleventh Circuit, Clements had
the opportunity to challenge the district court’s failure to address his motion for leave to
amend in his initial motion for reconsideration and during his first appeal to that court.
(Doc. 58, at 5). He did not. Plaintiff’s attempt to now deploy yet another Rule 60(b) motion
to raise claims that could have been made on direct appeal.
The Court has already considered Plaintiff’s prior request for reconsideration and
found that Plaintiff had not shown that reconsideration was needed to correct clear error
or prevent manifest injustice. (Doc. 40). Therefore, reconsideration and leave to amend
are denied.
Accordingly, it is now
ORDERED:

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(1)

Plaintiff pro se Louis Matthew Clements’ Opposed Motion for 60(b) Relief

from Judgment and Stay of Effectiveness of Appeal and Leave to File Third Amended
Complaint (Docs. 60, 61) are 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.
DONE and ORDERED in Fort Myers, Florida this 7th day of June, 2019.

Copies:
United States Court of Appeals for the Eleventh Circuit
All Parties of Record

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