Mackey v. Rising
ORDER denying 60 "Motion for Relief from Judgment and for Order of Disgorgement of Defendant's Unjust Enrichment Through the Fraudulent and the Expenditure of Taxpayer Funds" - Signed by District Judge Nancy G. Edmunds. (LBar)
Case 2:20-cv-13408-NGE-DRG ECF No. 63, PageID.1848 Filed 01/17/23 Page 1 of 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
WENDELL SHANE MACKEY,
Honorable Nancy G. Edmunds
ORDER DENYING “PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT AND
FOR ORDER OF DISGORGEMENT OF DEFENDANT’S UNJUST ENRICHMENT
THROUGH THE FRAUDULENT USE AND EXPENDITURE OF TAXPAYER FUNDS”
This civil rights case filed under 42 U.S.C. § 1983 stems from a threatening phone
call allegedly made by Defendant Jeff Rising, a former City Commissioner in the City of
Adrian, to Plaintiff Wendell Shane Mackey’s mother. On November 29, 2022, the Court
entered an opinion and order dismissing Plaintiff’s First Amendment retaliation claim and
a judgment closing this case based on its finding that Defendant was not acting under
color of state law when he made the call. (ECF Nos. 56, 57.) Plaintiff has since filed a
notice of appeal with the Sixth Circuit Court of Appeals. (ECF No. 58.) Plaintiff has also
filed the present motion, seeking relief from judgment under Federal Rule of Civil
Procedure 60(b) or, alternatively, an order of disgorgement of “Defendant’s unjust
enrichment through the fraudulent use and expenditure of taxpayer funds.” (ECF No. 60.)
Defendant opposes the motion. (ECF No. 61.) Plaintiff has filed a reply. (ECF No. 62.)
Pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the motion will be decided
without oral argument. For the reasons below, the Court DENIES Plaintiff’s motion.
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Plaintiff’s Request for Relief from Judgment
Plaintiff points to remarks made by Defense counsel after the Court issued its
decision in this case as the basis for his request for relief. Defendant argues that the
Court does not have jurisdiction to grant Plaintiff’s motion in light of the pending appeal
and that even if it did have jurisdiction, Plaintiff is not entitled to the relief he seeks.
A notice of appeal generally “confers jurisdiction on the court of appeals and
divests the district court of control over those aspects of the case involved in the appeal.”
Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (citation
omitted). Thus, the Court may not “alter the status of the case as it rests before the Court
of Appeals.” United States v. Gallion, 534 F. App’x 303, 310 (6th Cir. 2013) (internal
quotations and citation omitted).
Because Plaintiff has filed a notice of appeal with the Sixth Circuit, the Court does
not have jurisdiction to set aside its prior judgment. Under Federal Rule of Civil Procedure
62.1(a), however, “[i]f a timely motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant
the motion if the court of appeals remands for that purpose or that the motion raises a
The Court will, therefore, consider the motion on the merits to
determine which course of action it will take under Rule 62.1.
Denial on the Merits
Federal Rule of Civil Procedure 60(b) allows the Court to relieve a party from a
final judgment or order for the following reasons:
Case 2:20-cv-13408-NGE-DRG ECF No. 63, PageID.1850 Filed 01/17/23 Page 3 of 5
(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)
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.
Plaintiff relies on Rule 60(b)(2), (3), and (6) as the basis for his motion.
The so-called newly discovered evidence is the following excerpt of remarks made
by Defense counsel at a public meeting following the Court’s issuance of its decision:
The City of Adrian had a very good week in, uh, state and federal court
last week. Uh. The first thing I would like to report is that a lawsuit, uh,
pending in the United States District Court for the Eastern District of
Michigan, or federal court, against the city and one of the former
commissioners, uh, was dismissed by Judge Nancy Edmunds in a very,
what I would consider, a well-reasoned opinion. We have been fighting with
a local resident for several years now. Um. Who had, uh, made various
complaints all of which were dismissed by the Court. So that a was a very
nice win, quite frankly.
(See ECF No. 60, PageID.1721 (emphasis and bold in original).)
These remarks do not provide a basis for relief. First, they cannot be considered
newly discovered evidence because they had not been made at the time judgment was
entered. See Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129, 136 (6th Cir. 1990). Nor
do these remarks constitute fraudulent conduct or the type of “exceptional or
extraordinary circumstances” that would warrant relief under Rule 60(b)(6). See Hopper
v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). Moreover,
Defense counsel’s statement regarding a case against the City of Adrian and one of its
former commissioners being dismissed does not constitute an admission that Defendant
was acting under color of state law when he made the phone call. As the Court noted in
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its previous order, the question of whether there was state action is a “fact-specific” inquiry
and does not turn on anyone’s subjective belief. See Chapman v. Higbee Co., 319 F.3d
825, 834 (6th Cir. 2003). Thus, Defense counsel’s remarks do not alter the Court’s prior
conclusion; Plaintiff’s request for relief from the judgment dismissing this case is denied.
Plaintiff’s Request for an Order of Disgorgement
Plaintiff alternatively seeks an order of disgorgement of the taxpayer funds used
to defend this action, arguing that if Defendant was not acting under color of state law
when he made the call, he improperly obtained a taxpayer funded legal defense in this
matter. Plaintiff raised a similar argument in a “motion to enjoin use of public funds for
the defense of this action” filed earlier in this case. (ECF No. 23.) Magistrate Judge
Grand denied that motion, finding that Plaintiff’s assertion regarding state action was
sufficient to trigger a public defense. (ECF No. 34.) Plaintiff did not object to that order.
Plaintiff may now believe that the Court’s ruling regarding a lack of state action compels
a contrary conclusion, but he does not cite any authority that would allow this Court to
resolve what is essentially an insurance coverage issue between Defendant and the entity
that provided him with a defense—the Michigan Municipal League Liability and Property
Pool—in the context of a post-judgment motion filed by Plaintiff in this § 1983 action.
Thus, Plaintiff’s request for an order of disgorgement is denied.
For the foregoing reasons, Plaintiff’s motion is DENIED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 17, 2023
Case 2:20-cv-13408-NGE-DRG ECF No. 63, PageID.1852 Filed 01/17/23 Page 5 of 5
I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 17, 2023, by electronic and/or ordinary mail.
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