Kelmendi v. Detroit Board of Education et al

Filing 155

ORDER denying 153 Motion. Signed by District Judge Laurie J. Michelson. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN P KELMENDI,
Plaintiff,
v.

Case No. 12-14949
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen

DETROIT BOARD OF EDUCATION and
the DETROIT PUBLIC SCHOOLS,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(b)(6) [153]
Back in 2014, John Kelmendi brought a six-count discrimination suit against the Detroit
Board of Education and Detroit Public Schools. (ECF No. 25.) Some of Kelmendi’s claims
survived summary judgment. See Kelmendi v. Detroit Bd. of Educ., No. 12-14949, 2015 U.S. Dist.
LEXIS 92400, at *38–39 (E.D. Mich. July 16, 2015). Later, at trial, a jury returned a partial verdict
for Kelmendi, including an award of front pay (ECF No. 97), which the Court vacated (ECF No.
117, 118). The Defendants appealed the jury’s verdict. (ECF No. 123.) But in short order they
voluntarily dismissed the appeal (ECF No. 130) and moved to deposit funds with the Court to
satisfy the judgment (ECF No. 129). After sorting through various attorneys’ fees issues, Kelmendi
received over $500,000. (ECF No. 145.)
Now, Kelmendi has a new lawyer. And the new lawyer, Benjamin Whitfield, has filed a
Rule 60(b) motion to reinstate the jury’s front pay award and resurrect a state-law claim abandoned
by Kelmendi at summary judgment. (ECF No. 153, PageID.3419–3420.) The motion is DENIED.
Federal Rule of Civil Procedure 60 allows a federal court to “relieve a party or its legal
representative from a final judgment, order, or proceeding” for things like “mistake,” “fraud,” or

“any other reason that justifies relief.” Fed. R. Civ. P. 60. Kelmendi’s motion relies on Rule
60(b)(6), the “any other reason” prong, a “catchall” provision” applicable only in “exceptional or
extraordinary circumstances where principles of equity mandate relief,” Miller v. Mays, 879 F.3d
691, 698 (6th Cir. 2018) (internal quotations omitted); Tanner v. Yukins, 776 F.3d 434, 443 (6th
Cir. 2015).
But Kelmendi does not point to any exceptional or extraordinary circumstances. Start with
the state-law claim Whitfield wants to resurrect. Whitfield says he noticed that at summary
judgment, the Court dismissed Kelmendi’s claim of retaliatory discharge under the Michigan
Worker’s Compensation Disability Act. (ECF No. 153, PageID. 3419; but see ECF No. 25,
PageID. 221; ECF No. 52, PageID.1266.) Whitfield says Kelmendi had no idea that claim was
dismissed, and he can prove it has merit. (Id.) As a grant of summary judgment is not a final order,
Whitfield says it is not too late for the Court to correct its error and reinstate Kelmendi’s claim.
(ECF No. 153, PageID.3420.)
But, as correctly argued by Defendants (ECF No. 154), Kelmendi does not have a Workers’
Compensation Disability Claim to reinstate because he never raised one. At best, Count VI of
Kelmendi’s complaint alleged a violation of Michigan public policy flowing from Defendants’
alleged retaliation after Kelmendi filed a compensation claim. (ECF 25, PageID.221.) But
Kelmendi’s previous attorney voluntarily dismissed that claim. (ECF No. 48, PageID.585.) And
even if Kelmendi never knew about it, he is bound by his retained lawyer’s strategic decision. See
Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962) (“Petitioner voluntarily chose this attorney
as his representative in the action, and he cannot now avoid the consequences of the acts or
omissions of this freely selected agent. Any other notion would be wholly inconsistent with our
system of representative litigation, in which each party is deemed bound by the acts of his lawyer-

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agent and is considered to have notice of all facts, notice of which can be charged upon the
attorney.” (internal quotations omitted)). So Kelmendi offers nothing exceptional or extraordinary
to permit relief under Rule 60(b)(6).
Next Whitfield urges the Court to reinstate Kelmendi’s front-pay award. Whitfield says, in
a retaliation suit like Kelmendi’s, front pay is the “functional equivalent” of reinstatement (ECF
No. 154, PageID.3432). But see Gunter v. Bemis Co., Inc., No. 17-6144, 2018 WL 4997777, at *4
(6th Cir. Oct. 16, 2018). And because Kelmendi was not reinstated, an award of front pay was the
only way to make Kelmendi whole. (ECF No. 154, PageID.3430.) So “the Court abused its
authority when it took from [Kelmendi] the $152,400 front pay awarded by the jury.”1 (ECF No.
153, PageID.3424.)
Whitfield makes much of the fact that the Court submitted the issue of front pay to the jury,
the jury awarded it, and the Court vacated the jury’s decision. All of that is true. (See ECF No 104,
PageID. 2335–2338; ECF No. 97; ECF No. 117, PageID.3128.) But in submitting the issue to the
jury, the Court made plain to the parties that the appropriateness of a front-pay award was still
very much in the air. (ECF No. 104, PageID. 2537–2538.) And ultimately, on Defendants’ postverdict motion (ECF Nos. 92, 100), the Court balanced the factors and found that Kelmendi never
provided enough evidence to just an award of front pay (ECF No. 117, PageID.3128). Kelmendi
did not appeal this ruling. He has not identified any error. Nor has he identified any other
exceptional circumstances warranting relief.
Even more, Whitfield ignores the discretionary, equitable nature of a front-pay award. See
Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398–99 (6th Cir.1993). And when it comes to actually

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Kelmendi’s claim for front pay was contested before, during, and after trial. (See ECF
No. 104, PageID. 2335–2338; ECF No. 117, PageID.3120–3128; see also ECF Nos 78, 85, 87, 91,
92, 94, 110.)
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awarding front pay, the division of labor is clear-cut: the judge decides whether front pay is
appropriate, and the jury decides how much, if any, to award. See, e.g., West v. Tyson Foods, Inc.,
374 F. App’x 624, 641 (6th Cir. 2010). At best, Whitfield tries to avoid the consequences of
Kelmendi’s decision not to appeal the Court’s ruling on front pay, something Rule 60(b) does not
permit. See Ackermann v. United States, 340 U.S. 193, 197–200 (1950); Steinhoff v. Harris, 698
F.2d 270, 275 (6th Cir. 1983); Saginaw Chippewa Indian Tribe v. Granholm, No. 05-10296, 2011
U.S. Dist. LEXIS 53765, at *6–7 (E.D. Mich. May 18, 2011).
In the end, Whitfield’s Rule 60(b)(6) motion offers nothing to suggest “the principles of
equity mandate relief.” Miller, 879 F.3d at 698. So the Court will not reinstate Kelmendi’s frontpay award and will not reinstate his state-law claim.
Finally, Defendants ask the Court to award costs and attorney fees pursuant to 28 U.S.C.
§ 1927. (ECF No. 154, PageID.3438.) They say Plaintiff’s motion is “groundless, vexatious, and
unreasonably wastes Defendants[’] and this court’s time and resources.” (Id.) Defendants are not
far off. Objectively, however, the Rule 60(b)(6) motion, while tenuous, is not the type of conduct
“that trial judges, applying collective wisdom of their experience on the bench could agree falls
short of the obligations owed by a member of the bar to the court.” Salkil v. Mount Sterling Twp.
Police Dep’t, 458 F.3d 520, 532 (6th Cir. 2006) (internal quotations omitted). But it is close. And
so Kelmendi is on notice that future motions of this kind may result in sanctions or attorney fee
awards pursuant to Federal Rule of Civil Procedure 11 or § 1927.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

Date: October 17, 2018
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I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, October 17, 2018, using the Court’s ECF system.

s/William Barkholz
Case Manager

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