Sivak et al v. United Parcel Service Co.

Filing 39

OPINION AND ORDER DENYING PLAINTIFFS' RULE 60(b)(6) 38 MOTION FOR RELIEF FROM JUDGMENT, TO CONSOLIDATE, AND FOR LEAVE TO FILE AMENDED CONSOLIDATED COMPLAINT. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN B. SIVAK, and INTERNATIONAL
SAMARITAN, on behalf of themselves and
all others similarly situated,
Plaintiffs,
No. 13-cv-15263
Hon. Gerald E. Rosen

vs.
UNITED PARCEL SERVICE
COMPANY,
Defendant.
___________________________________/

OPINION AND ORDER DENYING PLAINTIFFS’ RULE 60(b)(6) MOTION
FOR RELIEF FROM JUDGMENT, TO CONSOLIDATE, AND FOR
LEAVE TO FILE AMENDED CONSOLIDATED COMPLAINT
I. INTRODUCTION
On July 1, 2014, this Court dismissed Plaintiffs’ First Amended Complaint
with prejudice and entered judgment for Defendant. Plaintiffs now request that
this Court set aside judgment pursuant to Federal Rule of Civil Procedure 60(b)(6).
They do so for a unique reason and one that is not contemplated by this Rule -- in
order to consolidate this matter with another nearly identical matter for judicial
economy and appellate purposes. As briefly set forth below, the Court DENIES
Plaintiffs’ Motion.

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II. PERTINENT PROCEDURAL HISTORY AND BACKGROUND
On December 27, 2013, Plaintiffs’ counsel filed two separate, but nearly
identical lawsuits challenging the manner in which UPS charges customers for
additional liability coverage, one in the Eastern District of Michigan (this matter)
and one in the Central District of California (Solo v. UPS, 13-cv-9515).1 In
contrast to the Solo matter where UPS has yet to file an answer (by stipulation of
the parties), UPS moved to dismiss Plaintiffs’ First Amended Complaint on
February 2, 2014. (Def’s Mtn., Dkt. # 14). While that motion remained pending,
the parties -- without judicial involvement -- discussed consolidating both matters
before this Court. (Exs. A-E to Plfs’ Mtn., Dkt. # 38-1). Before coming to an
agreement however, this Court dismissed Plaintiffs’ First Amended Complaint
with prejudice on July 1, 2014. Sivak v. United Parcel Service Co., --- F. Supp. 2d
---, 2014 WL 2938088 (E.D. Mich. 2014) (Rosen, C.J.).
The Solo Plaintiffs subsequently dismissed their Complaint without
prejudice and refiled it as a “companion case” here in the Eastern District of
Michigan on July 11, 2014, which was assigned to the Honorable Judith E. Levy.
(14-cv-12719). This Court accepted reassignment pursuant to Local Rule 83.11 on
July 28, 2014. (Id. at Dkt. # 6). UPS has neither appeared nor filed a responsive
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Jeffrey A. Leon and Andrew J. McGuinness filed the initial Complaint in Sivak.
Leon (but not McGuinness) was also part of a team of lawyers who filed Solo. On
June 23, 2014, this Court granted Leon’s motion to withdraw as the Sivak
Plaintiffs’ attorney. McGuinness now represents both the Solo and Sivak Plaintiffs.
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pleading in the Solo matter, and the parties have stipulated to extend UPS’s
response date through August 29, 2014. (Id. at Dkt. # 7).
The Sivak Plaintiffs filed this instant Motion on July 31, 2014. They request
unique relief under Federal Rule of Civil Procedure 60(b). Plaintiffs request that
this Court: (1) vacate its July 1, 2014 judgment under Rule 60(b)’s catch-all
provision; (2) consolidate Sivak and Solo; (3) permit the filing of a single
consolidated amended complaint (a draft of which is attached to their Motion); (4)
deem UPS’s previously filed Motion to Dismiss to be refiled against this new
complaint and permit the parties to just rest on their previously submitted briefs;
and (5) dismiss the single consolidated amended complaint with “a new, onesentence judgment . . . on the basis of its July 1, 2014 Opinion and Order.” (Plfs’
Mtn., Dkt. # 38, at 36). They advance this plan in the name of judicial economy: it
would obviate the need for the parties to file responsive pleadings in the Solo
matter and would avoid duplicative appellate practice. (Id. at 36, 42-45). While a
noble consideration, this Court cannot conclude that Rule 60(b) supports such
relief.
III. DISCUSSION
A.

Standard of Review
Federal Rule of Civil Procedure 60(b) governs Plaintiffs’ Motion, and

provides as follows:

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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:
(1)

mistake, inadvertence, surprise, or excusable
neglect;

(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;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it
prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Plaintiffs only rely upon the “any other reason that justifies
relief” catch-all provision. (Plfs’ Mtn., Dkt. # 38, at 40 n.2).
The Sixth Circuit recently summarized relief under Rule 60(b)(6) in
McGuire v. Warden, Chillicothe Correctional Institute, 738 F.3d 741 (6th Cir.
2013) as follows:
“Relief under Rule 60(b) is circumscribed by public policy favoring
finality of judgments and termination of litigation. This is especially
true in an application of subsection (6) of Rule 60(b), which applies
only in exceptional or extraordinary circumstances which are not
addressed by the first five numbered clauses of the Rule.” Ford
Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir.
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2007) (alteration and quotation marks omitted) (citation omitted).
Relief is limited to “unusual and extreme situations where principles
of equity mandate relief.” Id. (quoting Olle v. Henry & Wright
Corp., 910 F.2d 357, 365 (6th Cir. 1990)). “The decision to grant
Rule 60(b)(6) relief is a case-by-case inquiry that requires the trial
court to intensively balance numerous factors, including the
competing policies of the finality of judgments and the incessant
command of the court’s conscience that justice be done in light of all
the facts.” Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009)
(quoting Blue Diamond Coal Co. v. Trustees of UMWA Combined
Benefits Fund, 249 F.3d 519, 529 (6th Cir. 2001)) (alteration omitted).
Id. at 750. Stated differently, “district courts may employ subsection (b)(6) as a
means to achieve substantial justice when ‘something more’ than one of the
grounds contained in Rule 60(b)’s first five clauses is present.” Hopper v. Euclid
Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). The Sixth Circuit
has also stressed that “parties may not use a Rule 60(b) motion as a substitute for
an appeal or as a technique to avoid the consequences of decisions deliberately
made yet later revealed to be unwise.” Id. (internal citations omitted). Finally, a
district court has “especially broad” discretion under Rule 60(b)(6) “given the
underlying equitable principles involved.” Id.
B.

Plaintiffs have not shown that the principles of equity mandate relief
It is clear that Plaintiffs’ Motion does not advance an argument that the

“principles of equity mandate relief.” Plaintiffs concede as such, but argue that
because they “are not challenging the finality or propriety of this Court’s rulings,”
they “need not show an extraordinary ground for relief.” (Plfs’ Mtn., Dkt. # 38, at

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42). Their motive, rather, “is purely administrative and to promote the efficient
administration of justice.” (Id.). However well-intentioned their motive may be,
Plaintiffs have not shown that the principles of equity require this Court to vacate
its judgment. Absent such a showing, this Court may not exercise its discretion.
With that said, the Court appreciates that Plaintiffs have raised the issue of
judicial economy. In Sivak, this Court rejected Plaintiffs’ fundamental premise
that UPS’s Shipping Contract provided “the first $100.00 of declared value
coverage without charge for packages with a declared value of over $300.00” and
dismissed Plaintiffs’ contractual, unjust enrichment, 49 U.S.C. § 13708(a-b), and
RICO claims. Sivak, --- F. Supp. 2d ---, 2014 WL 2938088, at *8-18. The Solo
Plaintiffs -- and the proposed single consolidated amended complaint -- essentially
echo this theory and these claims. 2
In short, Plaintiffs’ promised forthcoming appeal in the Sivak matter will
govern the Solo matter. The Court is also not aware of any unique issue to be
litigated in the Solo matter that would support consolidation for the purpose of the
Sivak appeal. 3 Recognizing this and in the interest of judicial economy, the Court

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They do not, however, allege violations of RICO or 49 U.S.C. § 13708(a). The
Court also notes -- and Plaintiffs acknowledge -- that UPS may elect to raise
different defenses in the Solo matter. This may include, for example, whether
personal jurisdiction is appropriate.
3
Plaintiffs argue that “the fact that plaintiffs in the Solo action allege compliance
with UPS’s asserted 180-day notice condition provides a further basis for the
conclusion that the efficient administration of justice will be advanced by
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is willing to entertain a motion -- or a stipulated proposed order -- to stay the Solo
litigation pending the Sivak appeal. The Court encourages the parties to request
such relief in advance of August 29, 2014 -- the date by which UPS must respond
to the Solo Complaint.
IV. CONCLUSION
For these reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Rule 60(b)(6) Motion for Relief
From Judgment, To Consolidate, And For Leave To File Amended Consolidated
Complaint (Dkt. # 38) is DENIED.
IT IS SO ORDERED.
Dated: August 12, 2014

s/Gerald E. Rosen
Chief Judge, United States District Court

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 12, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

consolidation of two cases at this juncture.” (Plfs’ Mtn., Dkt. # 38, at 42). But as
they admit, this Court declined to address the 180-day argument. Sivak, --- F.
Supp. 2d ---, 2014 WL 2938088, at *7 n.4. There simply is no reason to
consolidate these cases for the purpose of appeal because they share issues that this
Court did not address.
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