Convertino v. United States Department of Justice

Filing 125

ORDER denying 119 Plaintiff's Motion for Reconsideration ; denying as Moot 120 Motion to Stay Consideration of Plaintiff's Motion to Reconsider. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICHARD G. CONVERTINO,
Plaintiff,
v.

Case No. 07-13842

UNITED STATES
DEPARTMENT OF JUSTICE,
Defendant.
/
ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER
AND DENYING NON-PARTY ASHENFELTER’S “EXPEDITED MOTION TO STAY
CONSIDERATION OF PLAINTIFF’S MOTION TO RECONSIDER” AS MOOT
On April 21, 2009, Plaintiff’s counsel deposed non-party newspaper reporter
David Ashenfelter. During his deposition, Ashenfelter objected to many questions by
invoking his Fifth Amendment privilege. After holding an ex parte hearing, during which
Ashenfelter’s counsel elaborated and provided certain facts to support a basis for the
objections, the court sustained Ashenfelter’s objection. During Ashenfelter’s April 21,
2009 deposition, Plaintiff offered an oral motion for reconsideration of the court’s
decision to sustain the privilege objections. Plaintiff later filed a “Supplemental Brief in
Support of His Argument that [Non-Party Reporter] David Ashenfelter Has Waived Any
Fifth Amendment Privilege.” On February 9, 2010, the court denied Plaintiff’s Motion for
Reconsideration. Once again, Plaintiff moves for reconsideration.1 Ashenfelter filed an

1

Motions for reconsideration must be filed within 14 days from the entry of the
judgment or order they challenge, see E.D. Mich LR 7.1(h)(1), making the due date in
this instance May 5, 2009. Plaintiff filed his motion more than three years late.
Although Plaintiff’s failure to comply with the filing deadline is reason enough to deny

“Expedited Motion to Stay Consideration of Plaintiff’s Motion to Reconsider.” For the
reasons that follow, Plaintiff’s motion for reconsideration will be denied and,
consequently, Ashenfelter’s motion will be denied as moot.
A motion for reconsideration shall be granted only if the movant can (1)
“demonstrate a palpable defect by which the court and the parties . . . have been
misled,” and (2) “show that correcting the defect will result in a different disposition of
the case.” E.D. Mich. LR 7.1(h)(3). “A ‘palpable defect’ is a defect that is obvious,
clear, unmistakable, manifest, or plain.” United States v. Lockett, 328 F. Supp. 2d 682,
684 (E.D. Mich. 2004).
Plaintiff relies exclusively on Attorney General Eric Holder’s statement that the
Department of Justice “will not prosecute any reporter for doing his or her job.” FY14
DOJ Budget Hearing: Hearing Before the S. Appropriations Subcomm. on Commerce,
Justice, Science and Related Agencies, 113th Cong. (2013) (Statement of Eric Holder,
Att’y Gen. of the United States) (June 6, 2013). Plaintiff argues that “the Attorney
General’s testimony now renders Mr. Ashenfelter’s assertions that his testimony could
lead to incrimination are now clearly implausible and there is no substantial risk of selfincrimination.” (Pg ID 2082.) However, “a motion for reconsideration is not an
appropriate vehicle for raising new facts or arguments.” United States v. A.F.F., 144 F.
Supp. 2d 809, 811 (citing Salopek v. Comm’r of Internal Revenue, No. 99-9012, 2000
WL 350263, at *2 (10th Cir. Apr.5, 2000)). Like motions pursuant to Federal Rule of
Civil Procedure 59, motions under Local Rule 7.1(h) “are aimed at re consideration, not
initial consideration.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d

reconsideration, the court also determines that his motion lacks merit.

367, 374 (6th Cir. 1998) (quoting FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st
Cir.1992)). Plaintiff has not “[demonstrated] a palpable defect by which the court and
the parties . . . have been misled,” the correction of which would “result in a different
disposition of the case.” E.D. Mich. LR 7.1(h)(3).
Even if the court construes Plaintiff's motion as a motion for relief under Federal
Rule of Civil Procedure 60(b) he remains unentitled to relief. Under that rule, a district
court may grant relief from a final judgment upon a showing of one of the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment
is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b).
A Rule 60(b) motion “must be made within a reasonable time—and for reasons
(1), (2), and (3) no more than a year after the entry of the judgment or order or the date
of the proceeding.” Fed. R. Civ. P. 60(c)(1). As already noted, Plaintiff filed his motion
three years past due and thus would only be eligible for relief under Rule 60(b)(4)–(6).
Sections (4) and (5) are inapplicable. Plaintiff’s only conceivable avenue for relief, then,
is the catch-all provision contained in Rule 60(b)(6). Although Rule 60(b)(6) permits
granting relief for “any other reason that justifies” it, the rule applies only in “exceptional
and extraordinary circumstances not addressed by the first five subsections of Rule

60(b).” Jinks v. AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir. 2001). The exceptional
circumstances require “unusual and extreme situations where principles of equity
mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990).
Plaintiff has not demonstrated such exceptional circumstances.
General Holder’s testimony offers Ashenfelter no protection from future
prosecution. Intervening changes in the law rarely constitute extraordinary
circumstances for relief under Rule 60(b)(6). Gencorp, Inc. v. Olin Corp., 477 F.3d 368,
373 (6th Cir. 2007) (quoting Agostini v. Felton, 521 U.S. 203, 239 (1997)). “Instead,
courts have relied on an applicable change in decisional law, coupled with some other
special circumstance, in order to grant Rule 60(b)(6) relief.” Blue Diamond Coal Co. v.
Trustees of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001). A
change in the law, standing alone, would not justify Rule 60(b)(6) relief. A statement
made by a beleaguered political appointee at a congressional subcommittee hearing
may be many things, but it is not a change in the law. Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration [Dkt. # 119] is
DENIED.
IT IS FURTHER ORDERED that Ashenfelter’s “Expedited Motion to Stay
Consideration of Plaintiff’s Motion to Reconsider” [Dkt. # 120] is DENIED as moot.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 25, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 25, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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