Walraven v. Miller et al

Filing 72

ORDER Denying 66 Motion to Amend Complaint. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
FRED WALRAVEN,
Plaintiff,
v.

Case No. 14-cv-12517
Honorable Thomas L. Ludington

BAY COUNTY SHERIFF JOHN MILLER, in his
Official and Individual Capacities,
Defendants.
_______________________________________/
ORDER DENYING MOTION TO AMEND COMPLAINT
On June 26, 2014, Plaintiff Fred Walraven filed suit against the Bay County Sheriff’s
Department and Bay County Sheriff John Miller. Walraven claims that Defendants violated both
federal and Michigan law by terminating his employment on April 15, 2014. See Pl.’s Compl.
ECF No. 1. According to Walraven, his termination was retaliation for the exercise of his First
Amendment rights, a violation of 28 U.S.C. § 1983. Defendants also, according to Walraven,
violated the Michigan Public Employment Relations Act and Whistleblowers’ Protection Act by
terminating him.
Defendants moved for summary judgment on all of Walraven’s claims. Defendant’s
motion was granted on January 28, 2016 and a Judgment dismissing Walraven’s complaint with
prejudice as to his First Amendment claim and without prejudice as to his state law claims was
entered the same day.
On February 29, 2016, Walraven moved to amend his complaint pursuant to Federal
Rules of Civil Procedure 15 & 59. Walraven argues in his motion that “the record evidence . . .
demonstrates additional protected speech.” Pl.’s Mot. Amend ¶ 5, ECF No. 15. He concedes that

“[s]aid speech was not alleged as a basis for Plaintiff’s First Amendment Retaliation claim.” Id.
at ¶ 6. He seeks to amend his complaint to add facts in further support of a revived First
Amendment retaliation claim. Id. at ¶ 7. Walraven relies on Halcomb v. Black Mountain Res.,
LLC, 303 F.R.D. 496 (E.D. Ky. 2014), in support of the relief he seeks.
As a preliminary matter, Walraven’s motion should be denied because he did not move to
alter or amend the judgment under Rule 59 or 60(b). The Sixth Circuit has explained that a party
seeking to amend the complaint after entry of judgment must “first mov[e] to alter, set aside or
vacate judgment pursuant to either Rule 59 or Rule 60 of the Federal Rules of Civil Procedure.”
Morse, 290 F.3d at 799. That is, “instead of meeting only the modest requirements of Rule 15,
the claimant must meet the requirements for reopening a case established by Rules 59 or 60.”
Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010).
“Under Rule 59, a court may alter the judgment based on: ‘(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.’” Id. at 615 (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.
2005)). Although Walraven invokes Rule 59 in his motion he does not separately move to amend
the judgment. See, e.g., Halcomb, 303 F.R.D. at 498 (explaining that the plaintiff moved
separately to amend the judgment and to amend the complaint). He also does not offer any
justification for vacating or amending the judgment.
There is no evidence in his motion that any of the four factors for disturbing a judgment
under Rule 59 apply to Walraven. Indeed, Walraven acknowledges that the facts he seeks to
allege were already present in the record as it existed before judgment was entered. Pl.’s Mot.
Amend ¶ 5, ECF No. 15. The Sixth Circuit has cautioned that courts “ought to pay particular
attention to ‘the movant’s explanation for failing to seek leave to amend prior to the entry of

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judgment.’” Leisure Caviar, 616 F.3d at 616 (quoting Morse, 290 F.3d at 800). Walraven has not
offered such an explanation here.
“If a permissive amendment policy applied after adverse judgments, plaintiffs could use
the court as a sounding board to discover holes in their arguments, then ‘reopen the case by
amending their complaint to take account of the court’s decision.’” Id. (quoting James v. Watt,
716 F.2d 71, 78 (1st Cir. 1983) (Breyer, J.)). Walraven’s motion to amend attempts this very
thing. His motion must be denied.
Accordingly, it is ORDERED that Plaintiff Fred Walraven’s Motion to Amend, ECF No.
66, is DENIED.
Dated: August 1, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 1, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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