Arnold et al v. Heyns et al

Filing 326

OPINION and ORDER DENYING CLASS MEMBER DANIEL HORACEK'S PRO SE MOTIONS 315 , 316 Signed by District Judge Linda V. Parker. (AFla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GERALD ACKERMAN and
MARK SHAYKIN,
Plaintiffs,
Civil Case No. 13-14137
Honorable Linda V. Parker

v.
HEIDI WASHINGTON,
Defendant.
_________________________/

OPINION AND ORDER DENYING CLASS MEMBER DANIEL
HORACEK’S PRO SE MOTIONS (ECF NOS. 315, 316)
On March 3, 2021, the Court issued a decision striking pro se motions filed
by Class members, including a motion filed by Daniel Horacek, and denying two
motions filed by Class counsel. (ECF No. 314.) The matter is presently before the
Court on new motions filed by Mr. Horacek: (i) a motion for reconsideration of the
March 3 decision (ECF No. 315); and (ii) a motion asking the Court to consider
Mr. Horacek’s November 22, 2019 notice of withdrawal from the Class or to create
a sub-class, appoint separate class counsel, and remove the existing Class
representatives and counsel (ECF No. 316). Mr. Horacek signed the first motion
on June 1 and the second motion on June 2, and these are the dates the motions are
deemed filed under the “prison mailbox rule.” See Brand v. Motley, 526 F.3d 921,
925 (6th Cir. 2008).

A motion for reconsideration of a non-final order must be filed within 14
days after entry of the judgment or order at issue.1 E.D. Mich. LR 7.1(h)(2).
Under Local Rule 7.1, a motion for reconsideration may be granted only on the
following grounds:
(A) The court made a mistake, correcting the mistake
changes the outcome of the prior decision, and the
mistake was based on the record and law before the court
at the time of its prior decision;
(B) An intervening change in controlling law warrants a
different outcome; or
(C) New facts warrant a different outcome and the new
facts could not have been discovered with reasonable
diligence before the prior decision.
E.D. Mich. LR 7.1(h)(2).
Mr. Horacek’s request to reconsider the Court’s March 3 decision is
untimely. While the Court may extend the time for “excusable neglect,” see Fed.
R. Civ. P. 6(b)(1)(B), the reasons Mr. Horacek provides for his delay do not
explain why he waited to file his motions more than a month after May 5—the date
he claims to have learned of the Court’s March 3 decision. In any event, in his
motion, Mr. Horacek fails to demonstrate grounds for relief.

Motions for reconsideration of final orders and judgments are no longer allowed
under Local Rule 7.1 but must be made under Federal Rules of Civil Procedure
59(e) or 60(b). See E.D. Mich. LR 7.1(h)(1).
2
1

First, Mr. Horacek argues that the Court erred in striking his pro se motion
in which he sought an order finding Defendant’s certification of the prison kitchens
not in compliance with the settlement agreement. (See ECF No. 309.) The Court
struck the motion as improper because Mr. Horacek is a member of the Class and
is represented by Class counsel, who separately filed a motion challenging
Defendant’s certification. (See ECF No. 314 at Pg ID 3403 (citing In re Pertuset,
492 B.R. 232, 246 (S.D. Ohio 2012)); see also ECF No. 297.) Federal Rule of
Civil Procedure 23(d)(1)(B)(iii) empowers the court to issue orders with respect to
the conduct of a class action. It does not give class members the right to file
motions where they are represented by class counsel.
In any event, even if the Court had considered Mr. Horacek’s motion, it
would have denied it for the same reasons it denied the motion filed by Class
counsel. (See ECF No. 314 at Pg ID 3405-09; see also ECF No. 296 (denying
earlier filed motion by Plaintiffs relating to kitchen certification).) In its decision,
the Court rejected the very same argument Mr. Horacek raised in his motion
concerning Michigan Compiled Law § 750.297e(1). (ECF No. 314 at Pg ID 3408.)
In his motion for reconsideration, Mr. Horacek makes no argument to show that
the Court erred.
As to Mr. Horacek’s other motion and request that the Court consider his
previous notice to opt out of the Class, the Court first notes that the Class here was
3

certified under Federal Rule of Civil Procedure 23(b)(2). (See ECF No. 157.)
Class members do not have a right to opt out of such a class. See Austin v.
Wilkinson, 83 F. App’x 24, 25 (6th Cir. 2003) (citing Coleman v. Gen. Motors
Acceptance Corp., 296 F.3d 443, 447 (6th Cir. 2002)). Mr. Horacek alternatively
asks the Court to certify a new sub-class, appoint separate class counsel, and
remove existing Class counsel and the Class representatives. His request,
however, comes too late. Well over a year before Mr. Horacek filed his motion, a
Judgment was entered and this case was closed.
For these reasons, the Court is DENYING Mr. Horacek’s pending motions
(ECF Nos. 315, 316.)
IT IS SO ORDERED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 7, 2021

I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, December 7, 2021, by electronic and/or
U.S. First Class mail.
s/Aaron Flanigan
Case Manager

4