Reed v. Lewis et al
Filing
144
OPINION AND ORDER DENYING PLAINTIFF'S 115 MOTION for Relief from Judgment filed by Mark Reed - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK ANTHONY REED-BEY,
Plaintiff,
No. 13-10168
-vsMagistrate Judge R. Steven Whalen
NOLA FETTIG,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Relief from Judgment [ECF No. 115],
filed pro se, in which he seeks to reinstate Defendant Vickie Lewis, who was dismissed
on February 26, 2014. Plaintiff bases his motion of Fed.R.Civ.P. 60(b)(2) and (3) and
60(d). For the following reasons, the motion will be DENIED.
A.
Rule 60(b)(2) and (3)
Fed.R.Civ.P. 60(b)(2) and (3) provide as follows:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
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);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party
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However, Fed.R.Civ.P. 60(c)(1) establishes a one-year time limit for bringing such
motions:
(c) Timing and Effect of the Motion.
(1) Timing. 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
the judgment or order or the date of the proceeding.
The final order dismissing Defendant Lewis was entered on September 28, 2017
[ECF No. 90]. Plaintiff filed the present motion more than two years later, on October 8,
2019. To the extent that the motion is based on Rule 60(b), it is time-barred.
B.
Rule 60(d)
Rule 60(d)(1) provides as follows:
(d) Other Powers to Grant Relief. This rule does not limit a court's power
to:
(1) entertain an independent action to relieve a party from a judgment,
order, or proceeding.
"The 'indisputable elements' of an independent action for relief from judgment are:
(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good
defense to the alleged cause of action on which the judgment is founded; (3) fraud,
accident, or mistake which prevented the defendant in the judgment from obtaining the
benefit of his defense; (4) the absence of fault or negligence on the part of the defendant;
and the absence of any adequate remedy at law." Mitchell v. Rees, 651 F. 3d 593, 595 (6th
Cir. 2011). “Independent actions [under Rule 60(d) ] must ... be reserved for those cases
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of ‘injustices which, in certain instances, are deemed sufficiently gross to demand a
departure’ from rigid adherence to the doctrine of res judicata.” United States v. Beggerly,
524 U.S. 38, 46 (1998)(citing Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S.
238, 244 (1944)).
In the context of the present motion, Plaintiff in effect supports his request for
relief under Rule 60(d)(1) by challenging Lewis’ credibility, i.e., positing a conflict
between the affidavit she submitted in support of her summary judgment motion and her
subsequent deposition testimony, regarding whether she participated in an administrative
property hearing, or whether such hearing occurred in December of 2011. But
notwithstanding any fine parsing of Lewis’ testimony, there is no material conflict. Lewis
testified at her deposition that although she was present in the property room when
Defendant Fettig looked at Plaintiff’s property (which is unsurprising, since Lewis
worked in the property room), she did not participate in any hearings, nor was it within
the scope of her duties to do so. This testimony is not materially inconsistent with her
affidavit, or for that matter, with her testimony at trial. Defendant correctly summarizes
as follows:
“Lewis stated in both her affidavit and her deposition testimony that no
administrative hearing was held. She further expounded in her deposition
that Plaintiff had an excessive property hearing administered by ARUS
Laing and RUM Fettig, however no administrative hearing for the NOI that
she wrote.” Response, ECF No. 117, PageID.931.
In any event, and alleged discrepancies between Lewis’ affidavit and her
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deposition testimony would, and most, create grist for impeachment. It does not rise to
the level of fraud that would support invocation of Rule 60(d)(3).1 As the Court
explained in Morawski v. U.S. Dep't of Agric., 2010 WL 2663201, at *6–7 (E.D. Mich.
July 2, 2010):
“Fraud on the court, as contemplated by Rule 60(d)(3), is interpreted
narrowly. Great Coastal Express, Inc. v. Int'l Bhd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., 675 F.2d 1349, 1356 (4th
Cir.1982). Relief generally is reserved for circumstances in which, for
example, a judge or a juror has been bribed, a bogus document is inserted in
the record, or improper influence has been exerted upon the court or an
attorney so that the integrity of the court and its ability to function is
directly impinged. Ibid.; see also Oxxford Clothes XX, Inc. v. Expeditors
Int'l of Wash., Inc., 127 F.3d 574, 578 (7th Cir.1997). By contrast, an
allegation of ‘nondisclosure to the court of facts allegedly pertinent to the
matter before it ... will not ordinarily rise to the level of fraud on the court.’
First Nat'l Bank v. Lustig, 96 F.3d 1554, 1573 (5th Cir.1980) (internal
quotation marks and citations omitted).”
Again, relief under Rule 60(d) is available only in cases of “unusual and
exceptional circumstances.” Rader v. Cliburn, 476 F.2d 182, 184 (6th Cir.1973). Plaintiff
has not made that showing.
Accordingly, Plaintiff’s motion [ECF No. 115] is DENIED.
IT IS SO ORDERED.
s/R. Steven Whalen
R. STEVEN WHALEN
United States Magistrate Judge
Dated: March 20, 2020
1
Lewis in fact testified at trial and was subject to cross-examination.
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
March 20, 2020 electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager
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