Collins v. City of Detroit et al

Filing 86

OPINION and ORDER denying plaintiff's 84 motion to set aside 74 judgment. Signed by District Judge Bernard A. Friedman. (JCur)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEROME COLLINS,
Plaintiff,

Civil Action No. 15-CV-11756

vs.

HON. BERNARD A. FRIEDMAN

RALPH GODBEE, et al.,
Defendants.
_____________________/
OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT
This matter is presently before the Court on plaintiff’s motion to set aside
judgment [docket entry 84]. Defendants have filed a response in opposition. Plaintiff has not
replied, and the time for him to do so has expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the
Court shall decide this motion without a hearing.
In the instant motion, filed on June 30, 2020, plaintiff asks that the Court set aside
the judgment entered for defendants in this matter on September 13, 2019. The judgment was
entered after the Court granted (1) defendant Craig’s motion for judgment on the pleadings on
August 15, 2019, (2) the motion of defendants Godbee, Lewis, Walton, Svenkensen, Williams,
Moore, and Lever for judgment on the pleadings or to dismiss on August 27, 2019, and (3) the
motions of defendants Hall and Dolunt for judgment on the pleadings or to dismiss on
September 13, 2019. Plaintiff did not appeal.
On November 22, 2019, plaintiff filed a motion for leave to file a third amended
complaint in an effort to cure the pleading defects that led to the dismissal of the second
amended complaint and the entry of judgment. On December 3, 2019, citing Pond v. Haas, 674

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F. App’x 466, 472-73 (6th Cir. 2016), the Court denied that motion because
plaintiff has not met the procedural prerequisite – i.e., moving to
set aside the judgment – for seeking leave to amend. Nor has he
offered any explanation, to say nothing of a compelling one, for
“failing to seek leave to amend prior to the entry of judgment,” id.
at 473, or why the Court should overlook his repeated failure to
cure the pleading defects which resulted in the dismissal of the
second amended complaint and the entry of judgment against him.
Op. & Ord. Den’g Pl.’s Mot. for Leave to File a Third Am. Compl. [docket entry 78] at 3.
On December 17, 2019, plaintiff filed a motion to alter or amend the judgment and
for leave to file a third amended complaint. The Court denied that motion for the following
reasons:
Under Leisure Caviar and Pond, a plaintiff who seeks leave to
amend in order to cure a pleading defect that led to dismissal and
entry of judgment against him must show that he is entitled to
relief under Rule 59 or 60 and that he has a compelling
explanation for having failed to seek leave to amend before
judgment was entered. In the present case, plaintiff has made
neither showing. He has identified no error in the Court’s
reasoning that defendants were entitled to judgment on the
pleadings because the [second amended complaint] contained no
allegations linking them to any of plaintiff’s claims. Under these
circumstances, there is no basis for altering or amending the
judgment under Rule 59(e), which requires the movant to show
“(1) a clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to prevent
manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620
(6th Cir. 2005). Nor is there any basis for vacating the judgment
under Rule 60(b)(6) – the only conceivably applicable subsection
of Rule 60(b) – which applies only in “extraordinary or
exceptional circumstances” and “cannot be used to avoid the
consequences of a party’s decision ... to forego an appeal from an
adverse ruling.” Pierce v. United Mine Workers, 770 F.2d 449,
451-52 (6th Cir. 1985) (internal quotation marks and citation
omitted). Plaintiff’s failure to demonstrate his entitlement to relief
under Rule 59(e) or 60(b) independently justifies the Court in
denying the instant motion.

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Additionally, plaintiff has not explained why he failed to seek
leave to amend the SAC before the Court entered judgment, a
separate showing the above-cited cases require him to make. The
SAC’s glaring pleading defect, which applied equally to all of the
defendants, was clearly identified in defendants’ motions for
judgment on the pleadings filed, as noted, weeks before the Court
granted those motions and entered judgment in their favor on
September 13. Moreover, two of the Court’s opinions (filed on
August 15 and August 27), granting two of these motions, were
filed well prior to the judgment. Plaintiff had ample opportunity to
seek leave to amend before judgment was entered but neglected to
do so, and he has offered no satisfactory explanation for this
failure.
Collins v. Godbee, No. 15-CV-11756, 2020 WL 103708, at *2-3 (E.D. Mich. Jan. 9, 2020).
On January 20, 2020, plaintiff’s attorney filed a “motion to withdraw as counsel
of record for plaintiff, and for stay of proceedings to permit plaintiff to retain new counsel.” In
that motion, plaintiff’s then counsel, Benjamin Whitfield Jr., indicated that he “has developed
serious health challenges . . . [t]hat . . . materially impair his ability to continue representation.”
Mr. Whitfield asked that the Court permit him to withdraw and that plaintiff be given ninety
days to obtain substitute counsel. On January 23 the Court granted the motion to withdraw but
denied the requested “stay of proceedings” because
[t]he Court entered judgment for defendants in this matter on
September 13, 2019. Plaintiff did not appeal, and the time for him
to do so expired on October 15. Nor, during the thirty-day appeal
period, did plaintiff file any of the motions listed in Fed. R. App.
P. 4(a)(4)(A)(i)-(vi), which would have tolled the appeal period.
Under these circumstances, the judgment has become final
and unappealable. There are no proceedings for the Court to
stay.
Ord. Grant’g Pl.’s Counsel’s Mot. to Withdraw and Deny’g Pl.’s Mot. for Stay of Proceedings
[docket entry 83] at 1-2.
Plaintiff took no further action in this matter until filing the instant motion on
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June 20. Through new counsel, plaintiff argues that the September 13, 2019, judgment should
be set aside pursuant to Fed. R. Civ. P. 60(b)(1) and/or (b)(6)1 on the grounds
6.That Plaintiff’s counsel’s failures to appropriately respond to the
Court’s instructions to properly amend the Complaints, to remedy
the noted defects, and to timely appeal the Judgments were due to
Counsel’s suffering from grave and serious illnesses, outlined
by Plaintiff’s counsel in the aforementioned Motion to Withdraw.
7.That there exists manifest injustice that will continue to result if
Plaintiff is not allowed to pursue his claims and that excusable
neglect is present where Plaintiff’s counsel was so debilitated as
to be unable to properly represent Plaintiff.
Pl.’s Mot. to Set Aside J. at 2. Plaintiff argues that Fed. R. Civ. P. 60(b)(1) applies because “he
has demonstrated excusable neglect via the serious, grave illnesses suffered by Plaintiff’s
counsel as highlighted in Plaintiff’s counsel’s Motion to Withdraw as Counsel.” Pl.’s Br. at 4.
He also points to Fed. R. Civ. P. 60(b)(6), which covers “any other reason that justifies relief.”
In opposing this motion, defendants correctly argue that Fed. R. Civ. P. 60(b)
cannot be used to cure errors by plaintiff’s former counsel. Without saying so explicitly,

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Rule 60 states:
(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:
(1) mistake, inadvertence, surprise, or excusable neglect;
*

*

*

or
(6) any other reason that justifies relief.
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plaintiff appears to argue that the failings of his prior counsel qualify as inadvertence or
excusable neglect under Rule 60(b)(1) because his prior counsel was ill. In Barron v. Univ. of
Mich., 613 F. App’x 480, 486-87 (6th Cir. 2015), the court of appeals stated:
“In determining whether relief is appropriate under Rule 60(b)(1),
courts consider three factors: (1) culpability—that is, whether the
neglect was excusable; (2) any prejudice to the opposing party;
and (3) whether the party holds a meritorious underlying claim or
defense.” Yeschick v. Mineta, 675 F.3d 622, 628 (6th Cir. 2012)
(internal quotation marks omitted). “A party seeking relief must
first demonstrate a lack of culpability before the court examines
the remaining two factors.” Id. at 628-29 (internal quotation marks
omitted). Barron cannot demonstrate a lack of culpability and thus
the district court did not abuse its discretion in denying her Rule
60(b) motion. Barron argues that her counsel’s conduct was
inexcusable but hers was not. But we have held that “a
determination of excusable neglect does not turn solely on whether
the client has done all that he reasonably could do to ensure
compliance with a deadline; the performance of the client’s
attorney must also be taken into account.” Reyes, 307 F.3d at 456
(internal quotation marks omitted) (emphasis in original). “[T]he
case law consistently teaches that out-and-out lawyer
blunders—the type of action or inaction that leads to successful
malpractice suits by the injured client—do not qualify as ‘mistake’
or ‘excusable neglect’ within the meaning of Rule 60(b)(1).”
McCurry, 298 F.3d at 595 (internal quotation marks and brackets
omitted).
(Emphasis in original.)
Even if an attorney’s illness could in theory provide a basis for affording relief
under Rule 60(b)(1), this cannot excuse plaintiff’s former counsel’s inadvertence or neglect in
the present case. Mr. Whitfield did not move to withdraw until January 20, 2020, four months
after the Court entered judgment. Before the Court entered judgment, Mr. Whitfield participated
actively in the litigation of this case, filing a second amended complaint, responding to
defendants’ three motions for judgment on the pleadings or to dismiss, and issuing summonses.

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After the Court entered judgment, Mr. Whitfield continued to litigate actively, seeking leave to
file a third amended complaint and filing a motion to alter or amend the judgment. There is
simply no indication (or evidence submitted in support of the instant motion) that Mr. Whitfield
was incapacitated during this period of time. Rather, his failure to amend the complaint – prior
to the entry of judgment – to allege that defendants were personally involved in violating any
of plaintiff’s rights is precisely the kind of “lawyer blunder” the Sixth Circuit has held does not
constitute excusable neglect under Rule 60(b)(1). The neglect is all the more inexcusable
because even after Mr. Whitfield withdrew from this case in January 2020, plaintiff still took
no action until filing the instant motion, through new counsel, six months later.
Under these circumstances, plaintiff has failed to show excusable neglect, the
prerequisite factor under Barron. This makes consideration of the other factors, prejudice and
“meritorious defense,” unnecessary. Nonetheless, the Court presumes that defendants would
be prejudiced by vacating the judgment ten months after it was entered. With the passage of
time, memories fade and witnesses become unavailable. Moreover, this ten-month delay is in
addition to the years Mr. Whitfield delayed in recommencing this action after the stay was lifted
once the City of Detroit emerged from bankruptcy. The Court has discussed these delays in
previous opinions. See docket entries 18, 24, 33, 36, and 42.
The third factor, the potential merit of plaintiff’s claims, is difficult to assess.
Plaintiff claims that defendants conspired to bring false criminal charges against him for time
fraud. Plaintiff was acquitted of those charges in 2011, but then discharged based on the same
allegations in 2013.
Regardless of the merit plaintiff’s claims may have, the fact remains that no relief

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is available to him under Rule 60(b)(1) because the neglect that led to the entry of judgment was
not excusable. To the extent plaintiff relies on Rule 60(b)(6), this rule
is applicable “only in exceptional or extraordinary circumstances
which are not addressed by the first five numbered clauses of the
Rule,” McDowell v. Dynamics Corp. of Am., 931 F.2d 380, 383
(6th Cir. 1991) (quoting Hopper v. Euclid Manor Nursing Home,
Inc., 867 F.2d 291, 294 (6th Cir. 1989)), and plaintiffs provide no
legal support for the applicability of that residual provision to a
case like this one.
Harness v. Taft, 801 F. App’x 374, 378 (6th Cir. 2020). Just as in Harness, plaintiff offers no
explanation as to why the present case presents “exceptional or extraordinary circumstances”
that are not addressed by Rule 60(b)(1). Accordingly,

IT IS ORDERED that plaintiff’s motion to set aside judgment is denied.

Dated: July 20, 2020
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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