Moniz v. Cox

Filing 25

ORDER denying 24 Motion for relief from judgment.. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HOWARD A. MONIZ, JR.,
Case Number: 2:11-CV-10127

Plaintiff,

HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

v.
MICHAEL A. COX,
Defendant.
/

ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT
Plaintiff Howard Moniz, a Michigan prisoner, filed a civil-rights complaint
contending that Michael A. Cox, Michigan’s former attorney general, failed to investigate
or remedy an allegedly discriminatory towing policy utilized by a private towing
company in Monroe, Michigan. He argued that Cox’s actions (and inaction) violated his
rights under the Due Process and Equal Protection Clauses. The Court summarily
dismissed the complaint for failure to state a claim upon which relief may be granted.
The Sixth Circuit Court of Appeals affirmed this Court’s decision dismissing the
complaint. Moniz v. Cox, 512 F. App’x 495 (6th Cir. 2013). Now before the Court is
Plaintiff’s Motion for Relief from Judgment.
Federal Rule of Civil Procedure 60(b) provides that relief from judgment may be
granted only for certain specified reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or the

like; (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)(1)-(6).
Plaintiff does not specify the subsection pursuant to which he seeks relief from
judgment, but relief is unavailable under any subsection. “A motion under Rule 60(b)
must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a
year after the entry of final judgment or order or the date of the proceeding.” Fed. R. Civ.
P. 60(c)(1). The judgment in this case was entered on April 4, 2011 and the motion is
signed and dated by Plaintiff on November 28, 2015. Thus, Plaintiff is time-barred from
proceeding under Rule 60(b)(1), (2), or (3). See In re G.A.D., Inc., 340 F.3d 331, 334
(6th Cir. 2003) (“Regardless of circumstances, no court can consider a motion brought
under Rule 60(b)(1), (2), or (3) a year after judgment.”).
Rule 60(b) motions filed under Rule 60(b)(4), (5), or (6), must be brought “within
a reasonable time.” Fed. R. Civ. P. 60(c)(1). Determining whether a motion has been
filed within a reasonable time “ordinarily depends on the facts of a 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). Plaintiff’s motion was filed over four years
after the Court issued its judgment. Plaintiff provides no explanation for why he waited
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so long to file his motion. He does not claim newly-discovered evidence or that he was
previously unaware of the basis for his motion. There are no circumstances compelling
equitable relief in this case. Given these factors, the Court finds that Plaintiff’s motion
was not filed within a reasonable time.
Alternatively, even if the motion was timely filed, the Court finds no basis for
relief from judgment. Plaintiff seeks relief from judgment for the same reasons he sought
relief in his complaint. This Court already considered these arguments and found they
did not state a claim. In addition, the Sixth Circuit Court of Appeals held that Plaintiff
failed to state a claim upon which relief may be granted. This Court is bound by the
appellate court’s holding under the law of the case doctrine. See Bowling v. Pfizer, Inc.,
132 F.3d 1147, 1150 (6th Cir. 1998) (under the law of the case doctrine “a court is
ordinarily precluded from reexamining an issue previously decided by the same court, or
a higher court in the same case”) (internal quotation omitted).
The Court DENIES Plaintiff’s Motion for Relief from Judgment (ECF No. 24).

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: January 12, 2016

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
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attorney or party of record herein by electronic means or first class U.S. mail on January
12, 2016.

s/Deborah Tofil
Case Manager

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