Mischler v. Stevens et al

Filing 139

MEMORANDUM and ORDER: plaintiffs Motion to Vacate Doc. 121 is DENIED. Signed by Judge Thomas W. Phillips on 9/29/14.(MJY)cc: COR, Mischler, Sixth Circuit COA.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT PIKEVILLE
AMY JERRINE MISCHLER,
Plaintiff,
v.
JONAH LEE STEVENS, et al.,
Defendants.

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No.: 7:13-CV-8

MEMORANDUM AND ORDER
Plaintiff has filed a Motion to Vacate and Strike Order Due to Outrageous Factual
Errors or in the Alternative a Hearing on the Matter [Doc. 121]. In short, plaintiff
requests that the Court vacate the memorandum and order [Doc. 118] entered April 8,
2014, granting the then-pending motions to dismiss and/or for summary judgment and
dismissing most of the remaining defendants from this case. Plaintiff claims that the
memorandum and order is rife with errors, so many that she declines to identify all of
them. She also requests that the undersigned withdraw from this matter because the
numerous errors raise an appearance of impropriety. The defendants have responded to
plaintiff’s motion [Docs. 130, 131, 132, 134] and the Court has carefully reviewed the
motion and responses.
Because plaintiff is proceeding pro se, the Court will construe her motion
liberally. See Williams v. Browman, 981 F.2d 901, 903 (6th Cir. 1992). Although
plaintiff’s motion is not styled as such, a party may move to alter or amend a judgment
pursuant to Fed. R. Civ. P. 59(e). However, relief under Rule 59(e) is available only if

the plaintiff can show: (1) a clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to prevent manifest injustice. Intera
Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005).

Rule 59 motions are

“extraordinary and … seldom granted,” Mitchell v. Citizens Bank, No. 3:10-00569, 2011
WL 247421 at *1 (M.D. Tenn. Jan. 26, 2011), and are not “intended as a vehicle to relitigate previously considered issues; should not be utilized to submit evidence which
could have been previously submitted in the exercise of reasonable diligence; and are not
the proper vehicle to attempt to obtain a reversal of a judgment by offering the same
arguments previously presented.” Gilley v. Eli Lilly & Co., 2014 WL 619583 at *2 (E.D.
Tenn. Feb. 18, 2014).

Plaintiff’s motion identifies no errors of law or intervening

changes in controlling law and presents no newly discovered evidence.

Further,

plaintiff’s mere disagreement with the Court’s recitation of the facts in the record does
not rise to the level of “manifest injustice.”
Alternatively, the Court will review plaintiff’s motion as a request for relief from a
final judgment under Fed. R. Civ. P. 60(b), which is permitted only 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.
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Fed. R. Civ. P. 60(b). Having presented no newly discovered evidence, a claim of fraud,
misrepresentation or misconduct by an opposing party, or evidence that the judgment is
void or no longer equitable, plaintiff’s request could only be reviewed under the first and
sixth provisions of Rule 60(b). Relief under Rule 60(b)(1) requires a party demonstrate
that she has a meritorious claim or defense, in addition to showing the existence of
mistake, inadvertence, surprise, or excusable neglect. Brown v. White, No. 96-3610,
1997 WL 570399 at *2 (6th Cir. Sept. 11, 1997). Plaintiff’s motion presents no evidence
of a meritorious claim, only a disagreement with some of the facts in the record. “Rule
60(b)(6) should be used only in exceptional or extraordinary circumstances and can be
used only as a residual clause in cases which are not covered under the first five
subsections of Rule 60(b).” Pierce v. United Mine Workers of Am. Welfare & Ret. Fund,
770 F.2d 449, 451 (6th Cir. 1985). There is nothing in plaintiff’s motion to indicate that
this is an exceptional or extraordinary circumstance which would justify amending or
vacating the previously entered judgment.
Finally, plaintiff has presented no meritorious reason for the undersigned to
withdraw and her request for hearing will be denied.
Accordingly, for all of these reasons, plaintiff’s Motion to Vacate [Doc. 121] is
DENIED.
IT IS SO ORDERED.
Enter:
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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