Clements v. 3M Electronic Monitoring

Filing 85

ORDERED: Plaintiff's Opposed Motion 60(b)(4) for Relief from Judgment and Motion for Leave to Amend (Doc. 81) is DENIED. Plaintiff's Motion to Disqualify Counsel (Doc. 82) is DENIED. Signed by Judge Sheri Polster Chappell on 6/15/2021. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LOUIS MATTHEW CLEMENTS,
Plaintiff,
v.

Case No: 2:16-cv-776-SPC-NPM

3M ELECTRONIC
MONITORING, INC.
n/k/a ATTENTI US, INC.
Defendant.
/
OPINION AND ORDER1
Before the Court are Plaintiff Louis Clements’ Rule 60(b)(4) Motion (Doc.
81) and Motion to Disqualify Counsel (Doc. 82). Defendant 3M Electronic
Monitoring, Inc., now known as Attenti US, Inc. (“3M EM”) responded in
opposition (Docs. 83; 84). The Motions are denied.
BACKGROUND
Clements has a long and storied history before this Court. His Second
Amended Complaint was dismissed with prejudice in 2017 due to the statute
of limitations, and his subsequent motion for reconsideration and recusal was

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denied.

The Eleventh Circuit affirmed on alternate grounds without

addressing the time bar, holding Clements failed to allege the physical harm
necessary to sustain a products liability claim. Clements v. Attenti US, Inc.,
735 F. App’x 661, 663 n.2 (11th Cir. 2018) (per curiam).
Clements then filed a second reconsideration, asking for leave to amend
and add claims. The Court denied. On appeal, the Eleventh again affirmed.
Clements v. 3M Elec. Monitoring, 770 F. App’x 506 (11th Cir. 2019) (per
curiam). As Clements had not challenged the failure to grant leave to amend
earlier, he waived his right to appeal the second time around. Id. at 508.
What’s more, the Eleventh held denying Clements’ motion to reconsider a
negligent infliction of emotion distress claim was proper because it was never
pled. Id.
After losing two rounds, Clements was undeterred. He filed two more
reconsideration motions—seeking leave to file an amended complaint.
Unsurprisingly, the Court denied, and the Eleventh affirmed. Clements v. 3M
Elec. Monitoring (Clements 3), 795 F. App’x 738 (11th Cir. 2019) (per curiam).
Now on his fifth try, Clements contends this Court lacked jurisdiction
over his claims because of a lack of diversity, rendering the judgment
dismissing his case as void. Clements also seeks leave to amend. And he wants
to disqualify opposing counsel.

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LEGAL STANDARD
Under Rule 60(b)(4), a court may relieve a party from a final judgment
based on a finding that the judgment is void, such as when “the court that
rendered it lacked jurisdiction of the subject matter.” Burke v. Smith, 252 F.3d
1260, 1263 (11th Cir. 2001) (quoting In re Edwards, 962 F.2d 641, 64 (7th Cir.
1992)). Yet it is “well-settled” that a “mere error” in a court’s exercise of
jurisdiction does not warrant the extraordinary relief provided by Rule
60(b)(4). In re Optical Techs., Inc., 425 F.3d 1294, 1306 (11th Cir. 2005)
(quoting Oakes v. Horizon Fin., S.A., 259 F.3d 1315, 1319 (11th Cir. 2001)).
Instead, federal courts considering motions voidness over jurisdictional defects
“generally have reserved relief only for the exceptional case in which that court
that rendered the judgment lacked even an ‘arguable basis’ for jurisdiction.”
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)
(emphasis added).
DISCUSSION
The Court first discusses whether the judgment was void before turning
to the other matters.
A. Rule 60(b)(4) Motion
The judgment was void, says Clements, for several reasons. The Court
addresses these claims below.

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Before doing so, however, the Court concludes diversity existed. Thus,
there was jurisdiction, so the Motion is denied. Diversity must exist at the
time of filing. Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570-71
(2004). As outlined in 3M EM’s response, its principal place of business was in
Minnesota when the case was filed (and dismissed).

Neither document

Clements offers calls this into doubt. While 3M EM had a Florida office, it was
only after the sale of 3M EM to Attenti that the nerve center moved to Florida.
That sale occurred months after dismissal, during Clements’ first appeal. Put
simply, “any changes in a party’s citizenship that occur after filing are
irrelevant” to diversity. Harris v. Garner, 216 F.3d 970, 983-84 (11th Cir.
2000).
For the sake of argument, even if there was not jurisdiction, the Rule
60(b)(4) Motion is still denied.
Federal courts must police for jurisdiction. FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990).

And parties cannot waive or forfeit

challenges to subject-matter jurisdiction. Gonzalez v. Thaler, 565 U.S. 134,
141 (2012). So the Court reviews every new case, including this one when it
was filed. But Clements seems to argue district courts must sua sponte launch
a full-scale factual inquiry into every complaint—even ones with no apparent
jurisdictional defects. That isn’t the law. E.g., Fitzgerald v. Seaboard Sys.
R.R., 760 F.2d 1249, 1251 (11th Cir. 1985) (Federal courts have “the obligation

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at any time to inquire into jurisdiction whenever the possibility that jurisdiction
does not exist arises.” (emphasis added)). Before dismissal, Clements properly
pled diversity jurisdiction in three iterations of the Complaint. And the Court
had no reason to question it. In short, there was at least an arguable basis for
jurisdiction, so the judgment is not void and Clements Rule 60(b)(4) Motion is
denied. Johnson v. Spencer, 950 F.3d 680, 695-98 (10th Cir. 2020); Hawkins v.
i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 221-22 (4th Cir. 2019).
Related to that conclusion is another of Clements’ arguments: he had no
opportunity to question jurisdiction. This contention is meritless. Clements
filed this case almost five years ago and had ample opportunities to raise the
issue. His chances included briefing a motion to dismiss, four motions for
reconsideration, and three separate appeals. That was far more opportunity
than most litigants get.
To the extent that Clements argues he had no access to the information
necessary to challenge jurisdiction, the record shows otherwise. According to
Clements, 3M EM’s principal place of business was in Florida, destroying
diversity. The initial disclosure Clements relies on to demonstrate 3M EM’s
address was sent to him almost four years ago; the corporate disclosures first
noting the sale of 3M EM was filed over four years ago; and the filings
Clements relies on from a later case against the same defendants is almost
eleven months old. In other words, Clements had access to the documents he

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now relies on for a significant period, and pro se or not, too much time has
passed. While Rule 60(b)(4) motions are exempted from Rule 60(c)(1)’s timing
requirements, they cannot be raised “at any time under any circumstances”;
litigants must “diligently” pursue their rights, rather than sleep on them.
Espinosa, 559 U.S. at 275; A & F Bahamas LLC v. World Venture Grp., Inc.,
796 F. App’x 657, 661 (11th Cir. 2020) (per curiam).

Clements did not

diligently pursue his rights here.
At bottom, this Court’s exercise of jurisdiction was proper. And even if
not, this would not rise above the level of “mere error.” There was an arguable
basis for jurisdiction in this case; indeed, Clements was the party pleading it.
This is not the exceptional case that warrants voiding a judgment. This is the
case of an aggrieved party, losing his case and trying his luck one more time.
Having decided that matter, Clements’ request to amend is denied as
moot. Even if the Court reached the matter, leave would be denied. Generally,
a pro se plaintiff “‘must be given at least one chance to amend the complaint
before the district court dismisses the action with prejudice.” Carter v. HSBC
Mortg. Servs., Inc., 622 F. App’x 783, 786 (11th Cir. 2015) (quoting Bank v. Pitt,
928 F.2d 1108, 1112 (11th Cir. 1991)). Here, Clements already had his chance
to litigate the issue of amendment. He did not take it. So he is not entitled to
that relief. As the Eleventh stated, that conclusion is law of the case. Clements
3, 795 F. App’x at 740. Even if it were not, 3M EM is correct the remedy for

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Clements’ reconsideration motion would be vacating the judgment—not to
reopen the case and permit amendment.
B. Motion to Disqualify
To the extent that Clements’ Motion to disqualify opposing counsel is not
moot, the Court denies. Disqualification is a “harsh” sanction and should be
resorted to “sparingly.” Norton v. Tallahassee Mem’l Hosp., 689 F.2d 938, 941
(11th Cir. 1982). The party bringing the motion to disqualify bears the burden
of proving the grounds for disqualification. Hermann v. GutterGuard, Inc., 199
F. App’x 745, 752 (11th Cir. 2006). For disqualification based on an alleged
ethical violation, courts “may not simply rely on a general inherent power to
admit and suspend attorneys, without any limit on such power.” Id. (quoting
Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997)).
Instead, courts “must clearly identify a specific Rule of Professional Conduct
which is applicable to the relevant jurisdiction and must conclude that the
attorney violated that rule.” Id. (quoting Schlumberger, 113 F.3d at 1561).
Clements has not met his burden of proving the grounds for
disqualification. He seems to question the adversarial nature of the legal
system. But that is by design: we seek truth through zealous advocacy of
opposing forces. One reality of that system is sometimes parties might feel
uncomfortable or have their feelings hurt. Unfortunately for Clements, these
are not grounds for disqualification. Of course, all litigants are bound by rules

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of decorum and lawyers by rules of professional conduct. Disqualification,
however, is not warranted here because the Court finds no ethical violations
(or even sanctionable conduct for that matter) by 3M EM’s counsel.
Accordingly, it is now
ORDERED:
(1) Plaintiff’s Opposed Motion 60(b)(4) for Relief from Judgment and
Motion for Leave to Amend (Doc. 81) is DENIED.
(2) Plaintiff’s Motion to Disqualify Counsel (Doc. 82) is DENIED.
DONE and ORDERED in Fort Myers, Florida on June 15, 2021.

Copies: All Parties of Record

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