McMahan Jets, LLC v. X-Air Flight Support, LLC et al
Filing
117
ORDER denying Plaintiff's 105 Motion for Relief From Judgment. The parties are directed to contact the chambers of U.S. Magistrate Judge Michael T. Parker within seven (7) days of the entry of this Order to schedule a case management conference. Signed by District Judge Keith Starrett on November 15, 2012 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
MCMAHAN JETS, LLC
V.
PLAINTIFF
CIVIL ACTION NO. 2:10CV175KS-MTP
X-AIR FLIGHT SUPPORT, LLC;
RIZO JET AVIATION SERVICES, LLC;
ROAD LINK TRANSPORTATION, INC.;
CLIFFORD GOTTSCHALK; XAVIER M. YBARRA,
and DEFENDANTS A-F
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Plaintiff McMahan Jets, LLC’s (“McMahan”
or “Plaintiff”) Motion for Relief from Judgment Pursuant to Rule 60(b)(1), (3) and (6) of
the Federal Rules of Civil Procedure (“Motion for Relief from Judgment”) [105]. Having
considered the submissions of the parties, the record and the applicable law, the Court
finds that Plaintiff’s motion is not well taken and should be denied.1
I. RELEVANT BACKGROUND
On May 28, 2010, Plaintiff filed suit against X-Air Flight Support, LLC (“X-Air”);
Rizo Jet Aviation Services, LLC (“Rizo Jet”); Roadlink Transportation, Inc. (“Roadlink”);
Clifford Gottschalk; and Xavier M. Ybarra in the Circuit Court of Forrest County,
Mississippi. (See Complaint [1-1 at ECF p. 6].) The Complaint asserts numerous
claims for relief arising from McMahan’s purchase of a 1978 Cessna 551 aircraft (the
1
The face of Plaintiff’s Motion for Relief from Judgment [105] requests oral
argument. Local Uniform Civil Rule 7 provides that the “court will decide motions
without a hearing or oral argument unless otherwise ordered by the court on its own
motion or, in its discretion, upon written request made by counsel in an easily
discernible manner on the face of the motion or response.” L.U.Civ.R. 7(b)(6)(A). The
Court has determined that oral argument will not be necessary or useful for the
resolution of the motion.
“aircraft”) in January of 2008.
Plaintiff’s claims against X-Air and Ybarra center upon the allegation that they
were contracted to perform a pre-buy inspection of the aircraft and that their inspection
failed to uncover twelve screw holes in the carry-through spar (section where the wings
are secured to the aircraft). Plaintiff contends that the screw holes compromised the
strength of the carry-through spar, which rendered the aircraft defective and
unairworthy. Plaintiff alleges that it purchased the aircraft from Roadlink and Rizo Jet
and that these Defendants are liable because they falsely represented that the aircraft
was airworthy and safe. Liability is asserted against Defendant Gottschalk chiefly on
the claim that he was the chief mechanic for the aircraft prior to its sale and that he
either knew or should have known that the twelve screw holes in the carry-through spar
rendered the aircraft unreasonably dangerous and unairworthy. Several documents are
attached to McMahan’s Complaint, including a purchase agreement for the aircraft
between McMahan and Rizo Jet (the “Purchase Agreement”) [12-1].
On July 16, 2010, Rizo Jet removed the action to this Court on the basis of
diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. (See Notice of
Removal [1].) On August 12, 2010, McMahan moved for remand largely on the basis of
a forum selection clause in the Purchase Agreement designating Forrest County,
Mississippi as the venue for any action arising from or relating to the parties’ agreement.
(See Motion for Remand [12].) On September 13, 2010, Defendants Roadlink and
Gottschalk moved for dismissal for lack of personal jurisdiction. (See Motion to Dismiss
[28].) Defendants’ Motion [28] posited that Roadlink is a Utah corporation and that
Gottschalk is a resident citizen of Utah. Defendants Roadlink and Gottschalk
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(sometimes collectively referred to as the “Utah Defendants”) claimed that there were
insufficient contacts between them and the State of Mississippi to allow for the exercise
of jurisdiction under Mississippi’s long-arm statute2 and the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
On January 6, 2011, the Court denied Plaintiff’s Motion for Remand [12]. (See
Memorandum Opinion and Order [62].) The Court principally found that McMahan had
waived its ability to seek enforcement of the forum selection clause in the Purchase
Agreement by suing Rizo Jet and Defendants who were not parties to the agreement.
On January 7, 2011, the Court granted the Utah Defendants’ Motion to Dismiss [28],
finding that they were not amenable to jurisdiction under Mississippi’s long-arm statute
and that the exercise of jurisdiction over them would fail to comport with traditional
notions of fair play and substantial justice. (See Memorandum Opinion and Order [64].)
The Court’s due process analysis was informed in large part by the Fifth Circuit’s
decision in Growden v. Ed Bowlin and Associates, Inc., 733 F.2d 1149 (5th Cir. 1984).3
On September 14, 2011, final judgment pursuant to Federal Rule of Civil
Procedure 54(b) was entered with respect to the dismissal of the Utah Defendants.
(See Judgment [97].) On September 21, 2011, Plaintiff filed its Notice of Appeal [98]
from the Court’s Judgment [97]. On August 1, 2012, Plaintiff filed its Motion for Relief
from Judgment [105]. The motion presents three grounds for relief: 1) the Utah
2
Miss. Code Ann. § 13-3-57.
3
In Growden, the Fifth Circuit held that a Georgia corporation that sold a Cessna
aircraft to a resident of Louisiana did not have sufficient contacts with Louisiana to
justify the exercise of in personam jurisdiction. 733 F.2d at 1150, 1152.
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Defendants’ alleged acts of fraud, misrepresentation, and other misconduct; 2) evidence
discovered after the entry of Final Judgment; and 3) “other reasons justifying relief from
Judgment”, which the Court construes to mean the application of certain legal opinions
issued close in time or subsequent to the Court’s January of 2011 Orders [62], [64].
On August 9, 2012, eight (8) days after the Plaintiff filed its Motion for Relief from
Judgment, the Fifth Circuit entered its opinion affirming this Court’s dismissal of the
Utah Defendants. See McMahan Jets, L.L.C. v. Road Link Transp., Inc., 2012 WL
3234404 (5th Cir. Aug. 9, 2012). The Fifth Circuit held that the facts alleged by the
Plaintiff failed to establish that the Utah Defendants had sufficient minimum contacts
with Mississippi under “the binding precedent of Growden v. Ed Bowlin & Assocs., 733
F.2d 1149 (5th Cir. 1984).” McMahan Jets, 2012 WL 3234404, at *1. Further, the Fifth
Circuit found no error in this Court’s denial of the Plaintiff’s Motion for Remand [12]. Id.
II. DISCUSSION
The Plaintiff largely fails to address its appeal before the Fifth Circuit in its Motion
for Relief from Judgment [105] and related filings. This Court cannot do the same. The
Fifth Circuit has taken the position “that ‘whatever was before the appellate court and
disposed of by the decree is considered as finally settled and becomes the law of the
case.’” Gulf Coast Bldg. & Supply Co. v. Int’l Bhd. of Elec. Workers, Local No. 480, 460
F.2d 105, 107 (5th Cir. 1972) (quoting In re United States, 207 F.2d 567, 570 (5th Cir.
1953)); accord Elias v. Ford Motor Co., 734 F.2d 463, 465 (1st Cir. 1984) (“A mandate
is completely controlling as to all maters before the appellate court and disposed of by
its decree.”). The Fifth Circuit’s Judgment [115] affirming this Court’s dismissal of
Roadlink and Gottschalk was issued as the mandate on October 1, 2012. Therefore,
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the Court must consider the effect of the Fifth Circuit’s mandate before addressing
whether the Plaintiff is entitled to any relief under Federal Rule of Civil Procedure 60(b).4
A.
The Mandate Rule
It is beyond peradventure “that ‘an inferior court has no power or authority to
deviate from the mandate issued by an appellate court.’” League of United Latin Am.
Citizens, Dist. 19 v. City of Boerne, 675 F.3d 433, 438 (5th Cir. 2012) (quoting Briggs v.
Penn. R.R. Co., 334 U.S. 304, 306, 68 S. Ct. 1039, 92 L. Ed. 1403 (1948)). “The
mandate rule, which is a corollary or specific application of the law of the case doctrine,
prohibits a district court on remand from reexamining an issue of law or fact previously
decided on appeal and not resubmitted to the trial court on remand.” United States v.
Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (citations omitted). The district court “must
proceed within the letter and spirit of the mandate by taking into account the appeals
court’s opinion and the circumstances it embraces.” Id. (citing Sobley v. S. Natural Gas
Co., 302 F.3d 325, 333 (5th Cir. 2002)). Thus, the district court is prohibited from
examining “‘issues decided both expressly and by necessary implication’” by the court of
4
The Court is fully cognizant that a trial judge does not flout the mandate by acting
on a motion under Rule 60(b) “deal[ing] with possible later events.” Standard Oil Co. of
Cal. v. United States, 429 U.S. 17, 18, 97 S. Ct. 31, 50 L. Ed. 2d 21 (1976). However, a
Rule 60(b) motion that “cite[s] no material change of circumstances or newly discovered
evidence” falls outside of the scope of Standard Oil. Fine v. Bellefonte Underwriters Ins.
Co., 758 F.2d 50, 52 (2d Cir. 1985); accord Logan v. Burgers Ozark Country Cured
Hams Inc., 64 Fed. Appx. 416, 2003 WL 1524574, at *3, 4 (5th Cir. Mar. 12, 2003)
(finding that Standard Oil tracks “the contours of the law-of-the-case doctrine” and does
not permit a district court to contradict an appellate mandate in the absence of “new,
substantially different evidence; intervening, contrary, controlling law; or a clearly
erroneous decision . . . .”).
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appeals. United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012) (quoting Pineiro, 470
F.3d at 205). The mandate rule serves the important jurisprudential policy of finality in
litigation, and is aimed at precluding obstinate litigants from reasserting arguments ad
nauseam and appealing again and again in the hope of obtaining a more sympathetic
appellate panel. See Pineiro, 470 F.3d at 205.
As with almost any rule, exceptions exist in regard to a district court’s duty to
follow an appellate mandate. The district court may reexamine issues resolved through
“appeal only if ‘(i) the evidence on a subsequent trial was substantially different, (ii)
controlling authority has since made a contrary decision of the law applicable to such
issues, or (iii) the decision was clearly erroneous and would work a manifest injustice.’”
Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th Cir. 2010) (quoting
Fuhrman v. Dretke, 442 F.3d 893, 897 (5th Cir. 2006)).
In January of 2011, this Court refused to remand this cause to the Circuit Court
of Forrest County, Mississippi, and dismissed the Utah Defendants for lack of personal
jurisdiction. (See Orders [62], [64].) These rulings were affirmed by the Fifth Circuit.
See McMahan Jets, 2012 WL 3234404. Plaintiff’s Motion for Relief from Judgment
[105] clearly implicates the mandate rule since it requests that the Court reconsider and
reverse its holdings that have been affirmed on appeal. Therefore, the mandate rule
precludes the grant of Plaintiff’s motion unless one of the above-stated exceptions is
found applicable.
Plaintiff’s Motion for Relief from Judgment [105] presents no evidence that is new
or substantially different from the evidence that was before the Fifth Circuit. Plaintiff
contends the following documents show that the Utah Defendants committed a fraud on
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this Court in relation to representations concerning the sale of the aircraft: Bill of Sale
[105-1]; Affidavit of Transfer of Aircraft/Helicopter [105-4]; Delivery and Acceptance
Certificate [105-5]; Priority Search Certificate(a) [105-6]; Priority Search Certificate(b)
[105-7]; Priority Search Certificate(c) [105-8]; Chain of Title Report [105-9]; Registration
Application [105-10]; Statement in Support of Registration [105-11]; Closing Statement
[105-12]; Technical Acceptance Letter [105-13]; and License Application [105-14].
Plaintiff also claims the following documents show that the Utah Defendants presented
misleading information to the Court regarding Roadlink’s contacts with Mississippi:
receipts for gas purchased from a Flying J location in Mississippi, pictures taken at three
different Flying J gas stations in Mississippi, and various other documents purportedly
showing that Roadlink is doing business in Mississippi [105-15]; and a Flying J rewards
card allegedly issued by Roadlink to Plaintiff’s counsel [105-16]. These same
documents were presented to the Fifth Circuit on appeal by way of Plaintiff’s Motion to
Correct/Supplement the Record; Rebuttal to Appellees’ Opposition to Motion to
Correct/Supplement; and/or Motion to Remand to the District Court.5 Moreover, the
fraud and misrepresentation arguments Plaintiff now makes based on the
aforementioned documents were also made to the Fifth Circuit via Plaintiff’s Motion to
Correct/Supplement; Petition for Panel Rehearing; and/or Petition for Rehearing En
Banc. The Fifth Circuit “by necessary implication”6 rejected Plaintiff’s fraud and
misrepresentation arguments based on the above-listed documents pursuant to its July
5
The Bill of Sale [105-1] and Technical Acceptance Letter [105-13] were also before
this Court prior to Plaintiff’s appeal.
6
Teel, 691 F.3d at 583.
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18, 2012 Order denying the Motion to Correct/Supplement; August 9, 2012 Opinion and
Order affirming the dismissal of the Utah Defendants; and September 21, 2012 denial of
Plaintiff’s Petitions for Rehearing. This Court lacks the authority to upset the Fifth
Circuit’s rulings in the absence of any new evidence from the Plaintiff.
Plaintiff has presented no authorities satisfying “the intervening-change-of-law
exception.” Teel, 691 F.3d at 583. Plaintiff contends the following opinions have
expanded the jurisdictional limits of courts of the State of Mississippi: Aultman, Tyner, &
Ruffin, Ltd. v. Capital Rubber & Specialty Co., No. 2:10cv223, 2011 WL 213471 (S.D.
Miss. Jan. 21, 2011); Knight v. Woodfield, 50 So. 3d 995 (Miss. 2011); and Cirlot
Agency, Inc. v. Sunny Delight Beverage Co., 85 So. 3d 329 (Miss. Ct. App. 2012).
All of these opinions were issued before the Fifth Circuit’s October 1, 2012 mandate in
this cause. Further, none of these authorities are controlling in comparison to the Fifth
Circuit’s holdings on minimum contacts under the Due Process Clause of the
Fourteenth Amendment. Therefore, the second exception to the mandate rule is
inapplicable in this proceeding.
The third and final exception to the mandate rule also affords the Plaintiff no
relief. “‘Mere doubts or disagreement about the wisdom of a prior decision of this or a
lower court will not suffice for this exception. To be clearly erroneous, a decision must
strike us as more than just maybe or probably wrong; it must be dead wrong.’”
Hopwood v. Texas, 236 F.3d 256, 272-73 (5th Cir. 2000) (quoting City Public Serv. Bd.
v. Gen. Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991)). This “is a very exacting standard.”
Id. at 272.
This Court’s dismissal of the Utah Defendants was based in large part on the
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Fifth Circuit’s decision in Growden v. Ed Bowlin & Associates, where the exercise of in
personam jurisdiction by a Louisiana court over a Georgia corporation that sold an
aircraft to a Louisiana resident was found not “to comport with due process
requirements.” 733 F.2d at 1151. The Fifth Circuit affirmed this Court’s ruling pursuant
to “the binding precedent of Growden . . . .” McMahan Jets, 2012 WL 3234404, at *1.
The Court finds that the Fifth Circuit’s holding in this cause was eminently correct, as
opposed to maybe or probably wrong, much less dead wrong. No manifest injustice
results from applying “binding precedent” to a party’s claims. This Court is bound by the
Fifth Circuit’s rulings and “has no power or authority to deviate from the mandate . . . .”
City of Boerne, 675 F.3d at 438.
B.
Federal Rule of Civil Procedure 60(b)
Even assuming arguendo that this Court is not bound by the Fifth Circuit’s
mandate, Plaintiff has failed to show that it is entitled to relief under Rule 60(b). Plaintiff
contends that relief is warranted under Rule 60(b)(1), (3) and (6). In reviewing the
substance of Plaintiff’s bases for relief, the Court finds that Plaintiff is actually
proceeding under subsections (2), (3) and (6) of the Rule.
1.
Rule 60(b)(2)
A court may relieve a party from a final judgment pursuant to “newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b) . . . .”7 Fed. R. Civ. P. 60(b)(2). To obtain relief
under Rule 60(b)(2), a party must show: “‘(1) that it exercised due diligence in obtaining
7
“A motion for a new trial must be filed no later than 28 days after the entry of
judgment.” Fed. R. Civ. P. 59(b).
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the information; and (2) that the evidence is material and controlling and clearly would
have produced a different result if present before the original judgment.’” Thermacor
Process, L.P. v. BASF Corp., 567 F.3d 736, 744 (5th Cir. 2009) (quoting Hesling v. CSX
Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005)).
Plaintiff contends the documents referenced in the Court’s analysis of the first
exception to the mandate rule constitute “newly discovered evidence” warranting relief
from the Court’s Judgment [97]. These documents can be separated into two groups:
1) documents relating to the aircraft’s sale and transfer of title (Doc Nos. [105-1], [1054], [105-5], [105-6], [105-7], [105-8], [105-9], [105-10], [105-11], [105-12], [105-13], [10514]); and 2) documents purportedly evidencing Roadlink’s contacts with Mississippi
(Doc Nos. [105-15], [105-16]). As to the first group of documents, the Bill of Sale [1051] and Technical Acceptance Letter [105-13] cannot constitute “newly discovered
evidence” under Rule 60(b)(2) since they were in the record before the entry of
Judgment [97] in September of 2011. The remaining documents in the first group were
either created in 2007 (Doc. No. [105-11]) or 2008 (Doc. Nos. [105-4], [105-5], [105-6],
[105-7], [105-8], [105-10], [105-12]); or, contain information regarding circumstances
occurring no later than March 4, 2008 (Doc. Nos. [105-9], [105-14]). Plaintiff has failed
to show that any of the documents in this group could not have been discovered with
reasonable diligence before the lawsuit was filed on May 28, 2010, much less before
the entry of judgment in September of 2011.
The Court also finds that the information referenced in the second group of
documents could have been discovered with reasonable diligence before the entry of
judgment. The existence of Flying J gas stations in Mississippi and the issuance of
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Flying J rewards cards to Mississippi citizens, such as Plaintiff’s counsel, do not appear
to constitute circumstances somehow hidden from public view or necessitating formal
discovery to unearth. More is required than the existence of newly discovered evidence
under Rule 60(b)(2). A plaintiff must also show “due diligence in obtaining the
information . . . .” Thermacor Process, L.P., 567 F.3d at 744. Plaintiff has made no
such showing here.
Moreover, the alleged newly discovered evidence would not have produced a
different result than the dismissal of the Utah Defendants. Plaintiff attempts to use the
first group of documents to show that it purchased the aircraft directly from Roadlink.
Binding Fifth Circuit precedent establishes that a defendant’s sale of an aircraft to a
resident of a forum state with the understanding that the aircraft would be based in the
forum state does not constitute sufficient minimum contacts allowing for “the exercise of
in personam jurisdiction.” Growden, 733 F.2d at 1152.
The documents in the second group do not warrant a different result because
Plaintiff has failed to show that they concern Roadlink’s contacts with Mississippi, as
opposed to the contacts of a parent or subsidiary corporation. Documents on file with
the Mississippi Secretary of State’s office show that FJ Managment Inc. f/k/a Flying J
Inc. is registered to do business in Mississippi. The Utah Defendants contend that the
documents in the second group relate to Flying J. Inc.’s alleged contacts with
Mississippi and that Roadlink is a separate and distinct corporation. Plaintiff has not
rebutted this contention. “As a general rule . . . the proper exercise of personal
jurisdiction over a nonresident corporation may not be based solely upon the contacts
with the forum state of another corporate entity with which the defendant may be
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affiliated.” Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 346 (5th
Cir. 2004) (citations omitted). Plaintiff has made no showing overcoming “the
presumption of corporate separateness . . . .” Id.
Relief from the Court’s Judgment [97] pursuant to Rule 60(b)(2) is not warranted
under the foregoing circumstances.
2.
Rule 60(b)(3)
A court may relieve a party from a final judgment pursuant to “fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party . . . .” Fed. R. Civ. P. 60(b)(3). In order to obtain relief under this Rule, Plaintiff
“must demonstrate, by clear and convincing evidence, ‘(1) that the adverse party
engaged in fraud or other misconduct, and (2) that this misconduct prevented the
moving party from fully and fairly presenting his case.’” Williams v. Thaler, 602 F.3d
291, 311 (5th Cir. 2010) (quoting Hesling, 396 F.3d at 641). Rule 60(b)(3) is directed “at
judgments which were unfairly obtained, not at those which are factually incorrect.” Id.
Plaintiff claims that the first and second groups of documents referenced in the
preceding section of this Opinion show that the Utah Defendants and their counsel
made false and misleading statements to the Court that resulted in judgment in their
favor. Plaintiff contends that the documents in the first group show that the Utah
Defendants misled the Court when they claimed that Roadlink sold the aircraft to Rizo
Jet, who then sold the aircraft to the Plaintiff. According to the Plaintiff, the documents
in the first group clearly show that the aircraft was sold by Roadlink directly to the
Plaintiff. The documents in the second group supposedly show that Roadlink’s
secretary, Robert Payne, misled the Court in his affidavit submitted in support of
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dismissal by not disclosing Roadlink’s extensive business contacts with Mississippi.
At best for the Plaintiff, the documents in the first group give rise to fact issues.
“They do not[, however,] approach clear and convincing evidence of fraud or
misconduct.” Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990) (finding that the
existence of conflicting testimony would not support relief under Rule 60(b)(3)); see also
Diaz v. Methodist Hosp., 46 F.3d 492, 497(5th Cir. 1995) (same as to an affidavit that,
at most, created a factual dispute). The Utah Defendants no more committed fraud or
misled the Court when they claimed that the aircraft was sold by Rizo Jet to the Plaintiff,
than the Plaintiff does when it claims that it purchased the aircraft from Roadlink. Just
as there are documents that tend to show that the aircraft was sold by Roadlink to the
Plaintiff (Doc. Nos. [105-1], [105-5], [105-6], [105-7], [105-8], [105-9], [105-12]),8 there
are also documents that appear to show that the aircraft was sold by Rizo Jet to the
Plaintiff. (See Purchase Agreement [12-1], Amendment to Purchase Agreement [1-1 at
ECF p. 46], Technical Acceptance Letter [105-13].) The documents in the second
group do not even give rise to a fact dispute since Plaintiff has failed to show that they
concern Roadlink’s contacts with Mississippi, as opposed to the contacts of a separate
corporate entity. See Freudensprung, 379 F.3d at 346.
Notwithstanding Plaintiff’s inability to prove fraud or misconduct by clear and
convincing evidence, it has failed to convince the Court that the Utah Defendants’
alleged misconduct prevented it “from fully and fairly presenting” its case. Williams, 602
8
Roadlink would not have sufficient contacts with Mississippi to warrant the exercise
of personal jurisdiction even if it sold the aircraft to McMahan. See Growden, 733 F.2d
at 1152.
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F.3d at 312. When a movant has “independent access to information” allegedly
evidencing fraud or misconduct before judgment, the trial court does not err in denying a
Rule 60(b)(3) motion. Diaz, 46 F.3d at 497. The fact that the Plaintiff submitted the first
and second groups of documents in support of its Motion for Relief from Judgment [105]
shows that it had independent access to the information. Furthermore, the nature of the
information presented by the Plaintiff leads the Court to conclude that it could have
been discovered through the exercise of reasonable diligence before the entry of
judgment in September of 2011.9 As a result, Plaintiff is not entitled to relief under Rule
60(b)(3).
3.
Rule 60(b)(6)
A party may obtain relief from judgment under Rule 60(b)(6) for “‘any other
reason than those contained in the preceding five enumerated grounds of Rule 60(b).’”
Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (quoting Rocha v. Thaler, 619 F.3d
387, 400 (5th Cir. 2010)). The Rule provides “‘a grand reservoir of equitable power to
do justice in a particular case when relief is not warranted by the preceding clauses.’”
Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc., 62 F.3d 767, 773-74 (5th Cir.
1995) (quoting Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453 (5th Cir. 1992)).
Yet, a motion should be granted under Rule 60(b)(6) “only if extraordinary
circumstances are present.” Id. at 774 (citation omitted).
Plaintiff seeks relief under subsection “(b)(6) because there was
misrepresentation, fraud and/or misconduct by the adverse parties, Gottschalk and
9
See Part II.B.1. of this Opinion.
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Roadlink and there are new documents that justify relief under these circumstances.”
(See Plaintiff’s Memorandum Brief in Support of Motion for Relief from Judgment [106]
at pp. 25-26.) The Fifth Circuit “has consistently held that relief under 60(b)(6) is
mutually exclusive from relief available under sections (1)-(5).” Hesling, 396 F.3d at 643
(citing Transit Cas. Co. v. Sec. Trust Co., 441 F.2d 788, 792 (5th Cir. 1971)). Thus,
Plaintiff “cannot obtain relief under 60(b)(6) where the allegations of fraud or misconduct
[or newly discovered evidence] are essentially the identical grounds for relief sought
under . . . [Plaintiff’s 60(b)(2) and] 60(b)(3) motion.” Id. The Court’s rejection of
Plaintiff’s fraud and newly discovered evidence claims for relief under Rule 60(b)(2) and
(3) precludes the Plaintiff from obtaining any relief under Rule 60(b)(6) based on the
same arguments.
The only other potential ground for relief under Rule 60(b)(6) that the Court can
discern from Plaintiff’s Motion for Relief from Judgment [105] and related filings is the
contention that the following legal authorities have expanded the jurisdictional limits of
Mississippi’s courts: Aultman, Tyner, & Ruffin, Ltd. v. Capital Rubber & Specialty Co.,
2011 WL 213471; Knight v. Woodfield, 50 So. 3d 995; and Cirlot Agency, Inc. v. Sunny
Delight Beverage Co., 85 So. 3d 329. These authorities are not controlling in
comparison to Fifth Circuit precedent on the issue of sufficient minimum contacts under
the Due Process Clause, and they were issued prior to the Fifth Circuit’s August 9, 2012
opinion in this case.10 Even if the Plaintiff had presented an on point Fifth Circuit
10
Furthermore, the dispositive facts before this Court in Aultman, Tyner, & Ruffin,
Ltd. v. Capital Rubber & Specialty Co., are clearly distinguishable from the
circumstances previously at issue here. In Aultman, Tyner, & Ruffin, the nonresident
defendant took purposeful and affirmative action, the foreseeable effect of which was to
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opinion issued subsequent to August 9, 2012, “[a] change in decisional law after entry of
judgment does not constitute exceptional circumstances and is not alone grounds for
relief from a final judgment under Rule 60(b)(6).” Adams, 679 F.3d at 319 (citations and
internal quotation marks omitted). In sum, the Court has not been presented with any
“extraordinary circumstances” warranting relief under Rule 60(b)(6). Id.
C.
Sanctions
The Utah Defendants request that the Court award them “their fees incurred in
responding to the Rule 60 Motion” due to Plaintiff’s “repeated and increasingly improper
attempts to litigate this matter against” them. (See Defendants’ Memorandum in
Support of Response [108] at pp. 16, 18.) Although the Utah Defendants cite numerous
fact allegations in support of their fee request, they cite no legal authorities authorizing
the imposition of sanctions. Furthermore, the Utah Defendants’ request for sanctions is
contained within their opposition to the Motion for Relief from Judgment [105], as
opposed to a separate motion.
The Court’s Local Rules require litigants to present requests for relief by motion.
See L.U.Civ.R. 7(b). Further, such requests are not to be included in a response to a
motion, but “must be an item docketed separately from a response.” L.U.Civ.R.
7(b)(3)(C). A movant must also file a memorandum brief in support of his motion unless
the issue may be heard ex parte or involves urgent or necessitous matters. See
L.U.Civ.R. 7(b)(4). Federal Rule of Civil Procedure 11 requires a party seeking
cause business activity in Mississippi, by contacting a Mississippi law firm and
requesting representation. 2011 WL 213471, at *9-10. Here, the Mississippi-Plaintiff
reached out to nonresidents for the purchase of an aircraft that was completed in
Tennessee.
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sanctions under it to submit a motion for sanctions separate from any other motion.
Fed. R. Civ. P. 11(c)(2). The Court declines the Utah Defendants’ request for sanctions
in the absence of their compliance with the preceding Rules.
The Court recognizes that it has the inherent authority to impose sanctions
against litigants and their attorneys in order to control the course of litigation on its
docket. See Knight v. Luedtke (In re Yorkshire, LLC), 540 F.3d 328, 332 (5th Cir.
2008). The Court is also aware that it may, by statute, sanction attorneys for
unreasonably and vexatiously multiplying the course of proceedings. See 28 U.S.C. §
1927. However, sanctions under either of these bases are the exception, rather than
the rule, and the limited briefing by the Utah Defendants fails to justify such action at
this time. See Positive Software Solutions, Inc. v. New Century Mortgage Corp., 619
F.3d 458, 460 (5th Cir. 2010) (noting that inherent power is to “be exercised only if
essential to preserve the authority of the court”); Knight, 540 F.3d at 332 (providing that
a court must make a specific finding of “bad faith conduct” in order to justify the
imposition of sanctions under its inherent authority); Procter & Gamble Co. v. Amway
Corp., 280 F.3d 519, 525-26 (5th Cir. 2002) (holding that sanctions under § 1927
require “evidence of bad faith, improper motive, or reckless disregard of the duty owed
to the court[;]” and, interpreting “§ 1927 as penal and constru[ing] it in favor of the
sanctioned party”). Although many of the allegations cited by the Utah Defendants in
support of sanctions weigh in favor of the denial of Plaintiff’s Motion for Relief from
Judgment, they do not necessarily evidence bad faith conduct justifying punitive action
by the Court.
Notwithstanding the foregoing, several of the Plaintiff’s litigation activities in
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relation to the Motion for Relief from Judgment [105] are not in keeping with accepted
practice and procedure and will be addressed herein. Local Rule 7(b)(5) provides that a
movant’s “original and rebuttal memorandum briefs together may not exceed a total of
thirty-five pages . . . .” L.U.Civ.R. 7(b)(5). Plaintiff has submitted briefing in support of
the Motion for Relief from Judgment [105] totaling approximately eighty-six (86) pages.
At no time did Plaintiff request leave to file excessive briefing. Therefore, Plaintiff’s
motion briefing failed to comply with Local Rule 7(b)(5).
Local Rule 7(b)(4) allows for the filing of the following documents by a movant: a
motion, a supporting memorandum brief, and a rebuttal. L.U.Civ.R. 7(b)(4). In this
case, Plaintiff filed each of the foregoing and its Supplemental Authorities in Support of
Plaintiff’s Motion for Relief from Judgment (“Supplemental Authorities”) [113] fifteen
(15) days after the submission of its Rebuttal. At no time did Plaintiff request leave
from the Court to file its Supplemental Authorities [113]. Further, this late filing fails to
address any circumstances that could not have been called to the Court’s attention at
the time Plaintiff’s Motion for Relief from Judgment [105] was filed. Therefore, Plaintiff’s
filing of its Supplemental Authorities [113] failed to comply with Local Rule 7(b)(4).
Rule 6 of the Federal Rules of Civil Procedure requires any affidavit supporting a
motion to be served with the motion. Fed. R. Civ. P. 6(c)(2). Plaintiff filed two affidavits
in support of the Motion for Relief from Judgment [105] as exhibits to its Rebuttal [111].
Plaintiff did not seek leave to file these affidavits out of time. Therefore, Plaintiff failed to
comply with Rule 6(c)(2) in filing the affidavits with its Rebuttal [111].
On September 4, 2012, the Court granted Plaintiff’s Motion for Extension of Time
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to File Rebuttal [109] and ordered that the “Plaintiff shall file its Rebuttal on or before
September 13, 2012.” (See Order [110].) Plaintiff filed its Rebuttal [111] on September
13, but also filed a Memorandum in Support of Rebuttal [112] one day later, on
September 14, without leave of Court. Plaintiff failed to comply with the Court’s Order
[110] by filing its Memorandum in Support of Rebuttal [112] on September 14.
The Court also finds the argument by Plaintiff’s counsel that the Fifth Circuit’s
decision in Growden v. Ed Bowlin & Associates, is not controlling in this case because it
was based on Louisiana’s long-arm statute to fall dangerously close to crossing the line
separating zealous representation from frivolity. (See Plaintiff’s Memorandum in
Support of Rebuttal [112] at p. 7; Supplemental Authorities [113] at p. 1.) It should be
clear to any member of the Bar that Growden was decided under the Due Process
Clause of the Fourteenth Amendment, which applies in this Court, and not Louisiana
state law. The Fifth Circuit could not have made the applicability of Growden to this
dispute any clearer: “We conclude that under the facts alleged by the plaintiff,
McMahan Jets, L.L.C. (“McMahan”), this case is squarely informed by the binding
precedent of Growden . . . .” McMahan Jets, 2012 WL 3234404, at *1.
The Court directs the following warning to the Plaintiff and its counsel in order
to maintain the integrity of proceedings going forward and to encourage future
compliance with the Court’s Rules. The Court will consider any future violations of the
Local Uniform Civil Rules, such as those described above, and any further argument
that Growden is not controlling in this action to constitute bad faith conduct allowing for
the imposition of sanctions, including but not limited to monetary sanctions, the
exclusion of evidence at trial, the striking of pleadings, and any and all other sanctions
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authorized under 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and/or the
Court’s inherent authority.
III. CONCLUSION
For the above-stated reasons:
IT IS ORDERED AND ADJUDGED that Plaintiff McMahan Jets, LLC’s Motion for
Relief from Judgment [105] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that counsel for the Plaintiff and
the remaining Defendants shall contact the chambers of the United States Magistrate
Judge Michael T. Parker within seven (7) days of the entry of this Order so that a
scheduling conference and case management deadlines may be set in this cause.
SO ORDERED AND ADJUDGED this the 15th day of November, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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