Dillard v. National Union Fire Insurance Company of Pittsburgh PA et al

Filing 30

ORDER DENYING Plaintiff's 28 Motion to Reinstate. Signed by District Judge Denise Page Hood. (MWil) (Main Document 30 replaced on 1/4/2013) (MWil).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDDIE DILLARD, #254178,
Plaintiff,
CASE NO. 2:09-CV-10702
HONORABLE DENISE PAGE HOOD

v.
NATIONAL UNION FIRE INS. CO., et al.,
Defendants.
___________________________________/

ORDER DENYING PLAINTIFF’S MOTION TO REINSTATE [Dkt. # 28]
The Court has before it Plaintiff’s “Motion to Reinstate Plaintiff’s Original Civil Rights
Action and Reopen Judgment for Abuse of Process Claim.” The Court dismissed his pro se civil
rights complaint as frivolous, for failure to state a claim upon which relief may be granted, and
on the basis of immunity and concluded that an appeal could not be taken in good faith on May
27, 2009. The Court subsequently denied his motions for relief from judgment, to alter the
judgment, and to reopen the case, as well as his petition for prejudgment interest and his
application to proceed in forma pauperis on appeal. The last of those orders was entered on
October 17, 2011. The United States Court of Appeals for the Sixth Circuit denied Plaintiff
permission to proceed in forma pauperis on appeal on November 5, 2012 finding that any appeal
would be frivolous and ordered him to pay the appellate filing fee in full or his appeal would be
dismissed for want of prosecution.
Plaintiff again seeks to reinstate his complaint, citing Federal Rule of Civil Procedure
60(b)(6). Under Federal Rule of Civil Procedure 60(b), a district court may grant relief from a
final judgment or order only 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 motion under Rule 60(b)(6) must be made within a reasonable time. See Fed. R. Civ.
P. 60(c)(1); Conner v. Attorney General, 96 F. App’x 990, 992 (6th Cir. 2004). The bounds of
reasonable time “ordinarily depends on the facts of the given 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). A court has broad discretion in deciding such matters, but that discretion is
circumscribed by public policy favoring finality of judgments and termination of litigation. See
Waifersong, Ltd. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992). Plaintiff did not
act within a reasonable time. The Court dismissed his complaint on May 27, 2009, denied
several motions in 2009, and denied his latest motions in 2011. Under the circumstances of this
case, where Plaintiff essentially seeks reconsideration and raises the same type of arguments
already presented to, and rejected by, this Court, such an extended period is not a reasonable
time in which to seek relief from judgment under Rule 60(b)(6).
Moreover, Plaintiff has not shown that he is entitled to such relief. The Court properly
dismissed his civil rights complaint as frivolous, for failure to state a claim upon which relief
may be granted under 42 U.S.C. § 1983, and on the basis of immunity. The arguments raised in

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his motion do not invalidate those rulings.1 Accordingly, the Court DENIES Plaintiff’s motion.
This case is closed. No further pleadings should be submitted in this matter.
IT IS SO ORDERED.

Dated: January 4, 2013

s/ Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record on January 4,
2013, electronically or by U.S. mail.

s/ Michael Williams
Relief Case Manager for the
Honorable Denise Page Hood

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The Court also notes that Plaintiff cannot prevail on an abuse of process claim. To the extent
that he did not raise such a legal theory in his initial complaint, he cannot do so now in seeking
relief from judgment. See, e.g., Jinks v. Allied Signal, Inc., 250 F.3d 381, 385 (6th Cir. 2001).
Moreover, the Sixth Circuit has not determined whether an abuse of process claim is a
cognizable claim which may be redressed under § 1983. See, e.g., Voyticky v. Village of
Timberlake, Ohio, 412 F.3d 669, 676-77 (6th Cir. 2005). If such a claim is a cognizable federal
claim, it would likely track the elements of the state law claim. Under Michigan law, an abuse of
process claim requires a plaintiff to establish: 1) an ulterior purpose and 2) an act that is
improper in the regular prosecution of a case. See Peiser v. Detroit Free Press, 68 Mich. App.
360, 242 N.W.2d 775 (1976). Plaintiff presents no such facts – his claims are purely conclusory.
He has thus failed to state a claim for abuse of process.
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