Pack v. Mast
OPINION AND ORDER: The FRCP Rule 60 Motion for Relief from Judgment filed by Plaintiff, Kevin Pack 41 is DENIED. Signed by Judge Philip P Simon on 04/01/2021. (edb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
) CAUSE NO. 3:19-CV-501-PPS-MGG
OPINION AND ORDER
Plaintiff, Kevin Pack, filed a motion titled “FRCP Rule 60 Motion for Relief from
Judgment.” [DE 41.] Pack claims that my order granting summary judgment in favor of
Defendant, Trent Mast [DE 39], “does not conform to the Indiana tort law.” [DE 41 at 1.]
I granted Mast’s motion for summary judgment in a lengthy opinion and order dated
February 5, 2021, and judgment was entered that date. [DE 39, 40.] Pack filed this
motion on March 5, 2021. [DE 41.]
Three days later, on March 8, 2021, Pack filed a notice of appeal of my opinion
and order.1 [DE 42.] Then, on March 24, 2021, Pack filed a motion under Federal Rule of
Appellate Procedure 42(b), asking the Seventh Circuit to grant his motion to voluntarily
dismiss the appeal “to allow the Northern District of Indiana to complete its
The appeal in this case was different than the one recently ruled upon by the
Seventh Circuit in another case brought by the same plaintiff, Pack v. Middlebury
Community Schools, No. 20-1912, 2021 WL 915911 (Mar. 10, 2021). In that case, the
Seventh Circuit repeated the School’s phrasing that “the goal of this hoax was to coax
the School into violating the settlement agreement” which occurred when Pack
recruited two acquaintances to call the School pretending to be prospective employers
to see what the School would say about him. Id. at *8.
consideration of Plaintiff’s T.R. 60 Motion filed in the Northern District of Indiana on
March 5, 2021.” [Case No. 21-1422, DE 5.] The Seventh Circuit granted this motion,
issuing an order and mandate on March 25, 2021, dismissing the appeal. [DE 48.]
The filing of a notice of appeal would typically “confer jurisdiction on the court
of appeals and divest the district court of its control over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).
But because Pack voluntarily dismissed the appeal, I now have jurisdiction to entertain
the instant motion.
Although Pack titled his motion as one pursuant to Rule 60(b), there are really
two ways for a court to analyze motions for reconsideration - under Rule 59(e) or Rule
60(b) of the Federal Rules of Civil Procedure. “Rule 60(b) relief is an extraordinary
remedy and is granted only in exceptional circumstances.” Karraker v. Rent-A-Center,
Inc., 411 F.3d 831, 837 (7th Cir. 2005) (quotation marks and citation omitted). This is not
such a case. Plaintiff has failed to set forth any mistake, inadvertence, surprise, or
excusable neglect justifying relief from the order. Fed. R. Civ. P. 60(b)(1); see also
Obriecht v. Raemisch, 517 F.3d 489, 493-94 (7th Cir. 2008) (“[Plaintiff] based his motion for
reconsideration on errors of law, a basis encompassed by Rule 59(e), not Rule 60(b).”).
I really consider Pack’s motion for reconsideration to be filed under Rule 59(e)
“because it is a substantive motion for reconsideration of an appealable order filed
within twenty-eight days of entry of that appealable order.” Grissom v. United States,
No. 4:19-cv-00232-TWP-DML, 2021 WL 325967, at * 1 n.1 (N.D. Ind. Feb. 1, 2021) (citing
Obriecht, 517 F.3d at 493). Here, judgment was entered on February 5, 2021 [DE 40], and
the instant motion was filed exactly 28 days later, on March 5, 2021. Rule 59(e) has a
slightly more liberal standard than Rule 60, requiring the moving party clearly establish
a manifest error of law or an intervening change in the controlling law, or present
newly discovered evidence. See Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998).
But of course a motion for reconsideration should not introduce new evidence that
could have been presented earlier. Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000). “Ultimately, a motion for reconsideration is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial
resources.” McGrath v. Everest Nat’l Ins. Co., 668 F.Supp.2d 1085, 1110 (N.D. Ind. 2009)
Pack pleaded two causes of action in his complaint: tortious interference with
contract and intentional infliction of emotional distress. Then, in the middle of briefing
the motion for summary judgment, he argued a claim for defamation under Indiana
law. Although I was skeptical of Pack’s ability to argue a new theory in response to
summary judgment, in an abundance of caution, I analyzed his claim for defamation,
finding that it failed on the merits anyway. [DE 39 at 11-18.]
Although Pack did not question the admissibility of evidence during the
summary judgment phase (but he certainly could have), he now claims that hearsay
evidence was impermissibly relied upon by the Court. [DE 41 at 1.] Pack complains
that I impermissibly relied upon things Mast’s brother told him, statements a student
told him, and the inadmissible findings of the school board. Recall that a defamation
per se claim requires proof of four elements: (1) a communication with defamatory
imputation; (2) malice; (3) publication; and (4) damages. Newman v. Jewish Cmty. Ctr.
Ass’n of Indianapolis, 875 N.E.2d 729, 735 (Ind. Ct. App. 2007). Here, none of these
statements were offered to prove the truth of the matter asserted. See Fed. R. Evid.
801(c)(2). Rather, this evidence went towards Mast’s state of mind - did he believe the
comments he wrote in the e-mails were true, or did he have the requisite “actual
malice,” acting with a high degree of awareness that the information was probably
false? I stand by my determination that Pack presented no evidence that Mast had
serious doubts as to the truth of his e-mails, and the evidence that I did consider in
ruling on the motion for summary judgment was proper to determine his state of mind.
Pack also argues that the Court incorrectly concluded that a teacher is a public
figure. [DE 41 at 4.] This is not true - I specifically stated in the order that Mast was a
private figure, but that the issue involved a matter of public or general concern since he
was a public high school teacher and the statements Mast made about Pack could go
towards his fitness to interact with children and be a teacher. [DE 39 at 13-14.]
For all of these reasons, the “FRCP Rule 60 Motion for Relief from Judgment”
filed by Plaintiff, Kevin Pack [DE 41] is DENIED.
ENTERED: April 1, 2021.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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