Bobbitt et al v. Academy of Court Reporting, Incorporated et al

Filing 293

ORDER Denying Eddie Donahoo's 292 Motion for relief. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TASHELIA BOBBITT, MISTY LATURNUS,
SONYA PARKER, KIMBERLY DAVIS,
TERRIE BUCHANAN, SHERITA FRAZIER,
NICOLE ROSSITER, LONJA ALLEN, and
DIANE POHL, on behalf of themselves and
a class of all those similarly situated,

Case Number 07-10742
Honorable David M. Lawson

Plaintiffs,
v.
ACADEMY OF COURT REPORTING, INC.,
and DELTA CAREER EDUCATION CORP.,
Defendants.
_______________________________________/
ORDER DENYING EDDIE DONAHOO’S MOTION FOR RELIEF
The plaintiffs in this case, current and former students at the Michigan campus of the
Academy of Court Reporting (Academy), brought suit against the defendants, the Academy and its
parent company, Delta Career Education Corporation (Delta), on a theory of fraud. The plaintiffs
alleged that the Academy duped them into enrolling into programs for court reporting and other lawrelated vocations by representing that it would confer upon them associate’s degrees, when it in fact
had no authority to confer such degrees. The plaintiffs also alleged that the Academy misrepresented
to them graduation and job placement rates and salary figures. The Court certified the matter as a
class action on May 1, 2008, and after reaching a tentative settlement, the parties moved for
preliminary approval of the settlement on July 10, 2009. On July 22, 2009, the Court entered a
corrected order granting preliminary approval of the settlement agreement, directing that notice be
given to known class members by first-class mail and by publication on or before August 7, 2009.
Absent class members were given until September 18, 2009 to submit claims and until August 28,

2009 to opt out of the settlement or file objections. Class counsel certified that they fulfilled the
Court’s notice requirements. On October 6, 2009, the Court held a fairness hearing and approved
the proposed class action settlement, which established a $7.8 million cash common fund for the
class to be distributed after payment of attorney’s fees and non-taxable costs. On October 15, 2009,
the Court granted class counsel’s motion for attorney’s fees and costs, awarded $2.5 million in
attorney’s fees and $169,165.76 for past costs, and approved the reimbursement of up to $100,000
for future expenses incurred in distributing the settlement. Class members were required to submit
claims by September 18, 2009. In their report of completion and distribution of settlement fund, the
plaintiffs asserted $5,067,786.36 was transferred to the settlement fund administrator for distribution
and that the entirety of that sum had been distributed as of June 15, 2010.
Presently, the matter is before the Court on Eddie Donahoo’s motion for relief. Mr. Donahoo
asserts that he was a student of the Academy of Court Reporting but he was not provided notice of
the lawsuit. He contends that after disbursements were made to the plaintiff class members, he
submitted picture identification and his social security number to the settlement administrator, but
his claim was denied. He seeks $60,000. The Court will assume that Mr. Donahoo was a member
of the previously certified class for the purposes of this motion, and his motion will be construed as
one for relief from the Court’s order overruling objections, approving class settlement, and
dismissing case under Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6).
Federal Rule of Civil Procedure 60(b) provides that the court may relieve a party from a final
judgment or order for the six following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) 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
(6) any other reason that justifies relief.
Fed. R. Civ. Pro. 60(b).
A decision to grant or deny a Rule 60(b) motion “is a matter of discretion for the district
court.” Bank of Montreal v. Olafsson, 648 F.2d 1078, 1079 (6th Cir. 1981). Relief from a judgment
or order under Federal Rule of Civil Procedure 60(b) is an “extraordinary remedy that is granted
only in exceptional circumstances.” McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491,
502-03 (6th Cir. 2000). Rule 60(b) “does not allow a defeated litigant a second chance to convince
the court to rule in his or her favor by presenting new explanations, legal theories, or proof.” Jinks
v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001); see also E.D. Mich. LR 7.1(g)(3) (“[T]he
court will not grant motions for rehearing or reconsideration that merely present the same issues
ruled upon by the court, either expressly or by reasonable implication.”). In order to qualify for
relief under Rule 60(b), “a party seeking relief from judgment must show the applicability of the
rule.” Ibid.
A.
Federal Rule of Civil Procedure 60(b)(1) provides that a court may grant relief in cases of
“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The Supreme
Court has stated that “‘excusable neglect’ is understood to encompass situations in which the failure
to comply with a filing deadline is attributable to negligence.” Pioneer Inv. Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 394 (1993). “In cases that have not been

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heard on the merits, the determination of whether neglect is excusable takes into account the length
and reasons for the delay, the impact on the case and judicial proceedings, and whether the movant
requesting relief has acted in good faith.” Burrell v. Henderson, 434 F.3d 826, 832 (6th Cir. 2006).
A motion for relief from an order under Rule 60(b)(1) must be brought “no more than a year after
the entry of the . . . order.” Fed. R. Civ. P. 60(c)(1). The Court entered the order approving the
settlement and dismissing the case on October 15, 2009. Mr. Donahoo’s request for relief, which
was filed on April 2, 2012, is untimely and must be denied.
B.
Federal Rule of Civil Procedure 60(b)(6) permits the court to grant a motion for relief from
judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). The Sixth Circuit has
held that a court may grant relief under this rule “‘only in exceptional and extraordinary
circumstances,’ which are defined as those ‘unusual and extreme situations where principles of
equity mandate relief.’” Export-Import Bank of U.S. v. Advanced Polymer Sciences, Inc., 604 F.3d
242, 247 (6th Cir. 2010) (quoting Jinks, 250 F.3d at 387). In addition, “something more than one
of the grounds in subsections (1) through (5)” must be shown to justify relief under Rule 60(b)(6).
East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 465 (6th Cir. 2011). Although a motion
for relief from an order under Rule 60(b)(6) need not be brought within a year of the order, it still
“must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). A reasonable time depends on
the circumstances of each case, including the “length and circumstances of the delay, the prejudice
to the opposing party by reason of the delay, and the circumstances compelling equitable relief.”
Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990); Smith v. Secretary of Health &
Human Servs., 776 F.2d 1330, 1333 (6th Cir.1985).

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In the present case, the prejudice to the opposing party weighs against finding that Mr.
Donahoo’s motion was brought within a reasonable time. The defendants paid $7.8 million dollars
to settle the claims against them. The Court approved the class settlement on October 6, 2009 and
dismissed with prejudice the claims against the defendant. The claim administrator reported that,
as of June 15, 2010, the entirety of the settlement fund was distributed to class members to pay
timely claims. The Court finds that the prejudice to the defendants from Mr. Donahoo’s lengthy
delay militates against finding that motion for relief was brought in a reasonable time. The Sixth
Circuit has found that delays of similar length were unreasonable. Blachy v. Butcher, 129 F. App’x
173, 179 (6th Cir. 2005) (finding that three-year delay was not reasonable); Suttles v. City of
Chattanooga, 886 F.2d 1316 (6th Cir. 1989) (unpublished) (holding that two and one-half year delay
was unreasonable). Therefore, the Court will deny Mr. Donahoo’s motion for relief.
Accordingly, it is ORDERED that Eddie Donahoo’s motion for relief [dkt. #292] is
DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: April 19, 2012

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 April 19, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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