Brown v. Illinois Central Railroad Company, Inc. et al

Filing 96

ORDER DENYING Plaintiffs Application to Set Aside Final Judgment; For Judgment on the Pleadings or Summary Adjudication on Liability on its Merits [Docket No. 88]; DISMISSING AS MOOT Plaintiffs Application for Injunctive Relief [Docket No. 87]; and G RANTING Defendants' Motion for Sanctions [Docket No. 89 and 94] to the extent that Plaintiff will be barred from filing any other motions, applications, or other pleadings in this civil action without prior approval from a United States District or Magistrate Judge. Plaintiff, Tyree Brown, is hereby barred from filing any additional motion, application, or any other pleading in this Civil Action unless the pleading is accompanied by advance written permission by a district or magistrate judge granting leave to file that pleading. Signed by District Judge William H. Barbour, Jr on 05-12-2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
TYREE W. BROWN, Individually and as the
Statutory Heir and Wrongful Death Beneficiary
of CHESTER BROWN and LESTER BROWN

VS.

PLAINTIFF

CIVIL ACTION NO. 3:09-cv-296-WHB-LRA

ILLINOIS CENTRAL RAILROAD COMPANY, INC.,
a/k/a CANADIAN NATIONAL RAILROAD, and
THE DOW CHEMICAL COMPANY

DEFENDANTS

OPINION AND ORDER
This cause is before the Court on four pending Motions.
Having considered the pleadings,1 the attachments thereto, as well
as supporting and opposing authorities, the Court finds:
Plaintiff’s “Notice of Application and Application to Set
Aside Final Judgment; For Judgment on the Pleadings or Summary
Adjudication on Liability on it’s Merits” is not well taken and
should be denied.
Plaintiff’s

“Notice

of

Application

and

Application

for

Injunctive Relief” should be dismissed on the grounds that this
civil action is closed.
The Motions of Defendants for Rule 11 Sanctions should be
granted only to the extent that Plaintiff will be barred from
filing any other motions, applications, or other pleadings in this

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As Plaintiff is proceeding pro se, the allegations in
his pleading have been liberally construed. See United States v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

civil action without prior approval from a United States District
or Magistrate Judge.

I.

Factual Background and Procedural History

In 2009, Tyree W. Brown (“Brown”) filed this lawsuit claiming
that he and his family had been exposed to certain chemicals,
including but not limited to, dioxin, pentachlorophenol, and sodium
pentachlorophenol, which had been dumped near their home in Rankin
County, Mississippi.

Brown further claimed that the exposure had

caused him to develop prostrate cancer and psychological problems,
and had caused the premature stillborn birth of his sons, Chester
and Lester Brown.

Brown’s lawsuit was brought against The Dow

Chemical Company (“Dow Chemical”), the purported manufacturer of
the chemicals, and Illinois Central Railroad Company, Inc. (“ICR”),
which had allegedly transported the chemicals to the site.

Brown

sought damages totaling over $120,000,000 on Mississippi state law
claims of strict liability, negligence, and wrongful death.
The matter came before the Court on motions for summary
judgment.

In deciding the motions, the Court held that all of

Brown’s state law claims were governed by a three-year statute of
limitations, which began to run on the date on which he had
knowledge of the injuries about which he complained.
and Order [Docket No. 53], 16-17, 18-19.

See Opinion

After considering the

evidence, the Court found there was no dispute that “Brown had

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knowledge of his prostate cancer in 2003, had knowledge of his
diagnoses of PTSD and schizophrenia in 2002, had knowledge of his
diagnosis of depression in 1984, and had knowledge of the death of
his sons in 1976.”

Id. at 19-20.

Applying the undisputed facts to

the applicable law, the Court held:
[U]nder Mississippi law, [Brown] had three years from
each of these dates to bring negligence, strict
liability, and wrongful death claims. As Brown’s most
recent lawsuit was not filed until August of 2009, the
Court finds that all of the claims he alleges in the
Complaint are time barred and, therefore, IRC and Dow
Chemical are entitled to summary judgment in this case.
Id. at 20.

A Final Judgment dismissing the case was entered on

October 30, 2009.
The matter came back before the Court on Brown’s Motion to
Alter or Amend the Final Judgment.

In deciding this Motion, the

Court did not consider Brown’s arguments regarding whether the
applicable statute of limitations was tolled, or whether his state
law claims were preempted and/or timely under Section 309 of the
Comprehensive Environmental Response, Compensation, and Liability
Act (“CERCA”), because these arguments were raised for the first
time in the rebuttal to the Motion to Alter or Amend.

See Opinion

and Order [Docket No. 71], 5-8 (citing Ross v. Marshall, 426 F.3d
745, 763 (5th Cir. 2005)(explaining that motions to alter or amend
under Rule 59(e) “cannot be used to raise arguments which could,
and should, have been made before the judgment issued.”); LeClerc
v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005)(“A motion for

3

reconsideration may not be used to rehash rejected arguments or
introduce new arguments.”)).
denied on January 5, 2010.

Brown’s Motion to Alter or Amend was

Id.

On January 7, 2019, Brown filed a

Notice of Appeal to the United States Court of Appeals for the
Fifth Circuit.
Shortly after the Notice of Appeal was filed, Brown filed a
Motion for Relief from Judgment in this Court pursuant to Rule
60(b) of the Federal Rules of Civil Procedure, which was denied.
See Opinion and Order [Docket No. 78].

Brown thereafter amended

his Notice of Appeal to include the denial of his Motion for Relief
from Judgment.

See Amended Notice [Docket No. 80].

The decisions

of this Court were affirmed on appeal. See Brown v. Illinois Cent.
R. Co., 480 F. App’x 753 (5th Cir. 2010).

Brown’s subsequent

Petition for Rehearing that he filed with the Fifth Circuit, and
the Petition for Writ of Certiorari he filed with the United States
Supreme Court were both denied.

See Brown v. Illinois Cent. R.

Co., Appeal No. 10-60016, slip. Orders (5th Cir. Jan. 19, 2011) and
(5th Cir. June 28, 2011).
On or about March 31, 2015, Brown filed the Application to Set
Aside Final Judgment that is presently before the Court. Brown has
also

moved

for

a

Judgment

on

the

Pleadings,

Adjudication of Liability, and for injunctive relief.

for

Summary

In addition

to responding to Brown’s Motions, Dow Chemical and IRC have moved
for sanctions.

The Court now considers all of these motions.

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II.
A.

Discussion

Brown’s Motions
In his Motion to Set Aside Final Judgment, Brown argues that

the Opinion and Order of this Court by which his claims were
dismissed as time-barred “was grossly in error.”
Aside [Docket No. 88], 3.

See Mot. to Set

In support of this claim, Brown argues

that the Mississippi state statute of limitations should not have
been applied to his claims because the “CERCA tolling limitation
provision under 42 U.S.C. § 9658 [preempts] the state statute of
limitations.”

Id. at 4.

Brown further argues that his personal

injury and wrongful death claims were timely filed under the
applicable CERCA provisions.
Brown first seeks to vacate the Final Judgment under Rule
60(b)(4) of the Federal Rules of Civil Procedure, which permits a
court to “relieve a party ... from a final judgment” in cases in
which “the judgment is void”.

“A judgment is void for purposes of

Rule 60(b)(4) if the court that rendered it entered an order
outside its legal powers.” Carter v. Fenner, 136 F.3d 1000, 1005
(5th Cir. 1998).

Thus, relief may be granted under Rule 60(b)(4)

only in cases in which subject matter or personal jurisdiction was
lacking, or in cases in which “the district court acted in a manner
so inconsistent with due process as to render the judgment void.”
Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d 204, 210 (5th
Cir. 2003).

Here, there has been no showing that the Court lacked
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jurisdiction over the case or the parties.

Additionally, the

record shows that Brown had notice of the motions for summary
judgment that were filed by the defendants in this case, and he was
granted ample opportunity to respond to those motions. Under these
circumstances, the Court finds Brown has failed to show that the
Final Judgment entered in this case is void.

Accordingly, his

request for relief under Rule 60(b)(4) is denied.
Next, Brown seeks to vacate the Final Judgment under Rule
60(b)(6), which permits a court to “relieve a party ... from a
final judgment” for “any other reason that justifies relief.”

The

Fifth Circuit has held that Rule 60(b)(6) cannot be used if the
grounds for seeking relief fall within one of the other enumerated
clauses of that Rule.

See e.g. Transit Cas. Co. v. Security Trust

Co., 441 F.2d 788, 792 (5th Cir. 1971)(explaining that “[t]he
reason for relief set forth in Rule 60(b)(1) cannot be the basis
for

relief

under

Rule

60(b)(6).”).

See

also

Baily

v.

Ryan

Stevedoring Co., Inc., 894 F.2d 157, 160 (5th Cir. 1990)(“[Rule
60(b)(6)] cannot be invoked when relief is sought under one of the
other grounds enumerated in Rule 60.”); Smith v. United States
Postal Serv., 275 F. App’x 447, 448 (5th Cir. 2008)(“[Relief under
Rule 60(b)(6) is not available if the motion is premised upon an
enumerated ground found in clauses [Rule 60(b)](1) through (5).”).
Here, Brown seeks relief under Rule 60(b)(6) on a claim that
the Court erred by applying a state law statute of limitations to

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his personal injury/wrongful death claims.

As the occurrence of a

“mistake” is one of the grounds for relief under Rule 60(b)(1), see
FED. R. CIV. P. 60(b)(1)(providing that the court may “relieve a
party ... from a final judgment” on the grounds of “mistake”),
Brown cannot use the alleged mistake as a basis for seeking relief
under Rule 60(b)(6). See Transit Cas. Co., 441 F.2d at 788; Baily,
894 F.2d at 160; Smith, 275 F. App’x at 448.

Additionally, Brown

cannot seek relief under Rule 60(b)(1) because motions seeking
relief under that Rule must be filed within one year of the date on
which judgment is entered.

See FED. R. CIV. P. 60(c)(providing that

a motion to vacate judgment for the reasons set forth in Rule 60(b)
(1), (2), and (3) must be filed “no more than a year after the
entry of the judgment ...”).

As it is clear that Brown’s current

Motion for Relief from Judgment was filed more than one year after
the date on which Final Judgment was entered, a motion for relief
under Rule 60(b)(1) would clearly be time-barred.

For these

reasons, Brown’s request for relief under Rule 60(b)(1) and/or (6)
is denied.
Finally, Brown seeks to vacate the Final Judgment entered in
this case under Rule 60(d), which provides:
This rule does not limit a court’s power to:
(1) entertain an independent action to relieve a party
from a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant
who was not personally notified of the action; or

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(3) set aside a judgment for fraud on the court.
As there has been no showing that any of the grounds set forth in
Rule 60(d) have been satisfied in this case, the Court finds
Brown’s request for relief under this Rule should be denied.

The

Court additionally finds, that because there is no basis for
vacating the Final Judgment that was entered in this case, this
civil action will remain closed.

As such, Brown’s requests for

judgment on the pleadings, summary adjudication on liability, and
for injunctive relief, will all be dismissed as moot.

B.

Motions of Defendants
Both Dow Chemical and ICR have moved for sanctions against

Brown under Rule 11(c) of the Federal Rules of Civil Procedure.
Under this Rule, a court may impose monetary sanctions, including
an award of attorneys’ fees, against a party that has violated Rule
11(b).

See FED. R. CIV. P. 11(c)(1)(providing: “If, after notice

and a reasonable opportunity to respond, the court determines that
Rule 11(b) has been violated, the court may impose an appropriate
sanction on any ... party that violated the rule or is responsible
for the violation.”).

Rule 11(b), in turn, provides:

By presenting to the court a pleading, written motion, or
other paper – whether by signing, filing, submitting, or
later advocating it – an attorney or unrepresented party
certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose,
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such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or
for establishing new law;
(3) the factual contentions have evidentiary support or,
if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
The

Court

finds

that

Brown,

by

filing

his

recent

Applications/Motions to Set Aside Final Judgment and for Injunctive
Relief, has violated Rule 11(b).

A review of the Docket in this

Civil Action shows that Final Judgment was entered on October 30,
2009.

Thereafter, Brown filed two motions seeking to have the

Final Judgment either altered or vacated, both of which were
denied.

See Mot. to Alter Jud. [Docket No. 55], denied by Order

[Docket No. 71]; Mot. for Relief from Jud. [Docket No. 74], denied
by Order [Docket No. 78].
affirmed on appeal.

The decisions of this Court were

See Brown, 480 F. App’x 753.

In his current Motions, Brown raises the same arguments that
were previously raised, considered, and found to lack merit by both
this Court and the Fifth Circuit. As the arguments raised by Brown
in his recent Motions have already been considered and found
lacking by the courts, the Court finds Brown’s Motions: (1) do not
present claims that are warranted by existing law; (2) have
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needlessly increased the cost of this litigation; and (3) have
needlessly

caused

the

Court

to

expend

judicial

resources

on

deciding meritless pleadings. Thus, the Court finds that Brown has
violated Rule 11, and that sanctions should be imposed under that
Rule.

In imposing sanctions, the Court is mindful that it must

“carefully choose sanctions that foster the appropriate purpose of
the rule, depending upon the parties, the violation, and the nature
of the case.”

Thomas v. Capital Sec. Servs. Inc., 836 F.2d 866,

877 (5th Cir. 1988).

Having considered the purposes of Rule 11,

which requires that sanctions “be limited to what suffices to deter
repetition of the [offending] conduct”, in conjunction with the
procedural

history

of

this

case,

the

Court

finds

that

the

appropriate sanction is to bar Brown from filing any additional
motion, application, or any other pleading in this case unless the
pleading is accompanied by advance written permission by a district
or magistrate judge granting leave to file that pleading.2

Having

so found, the Court will grant the Motions of Defendants for
Sanctions, to the extent the Motions seek to enjoin Brown from
filing any additional pleadings in this case.

2

Both Dow Chemical and IRC request that Brown be barred
from filing any additional pleadings in any of the cases he has
filed against them in federal court. This Court is reluctant to
issue such a broad sanction because there are already motions
pending in at least one of the other cases Brown has filed, and
imposing a broad sanction may interfere with the briefing and/or
deciding of those motions. See e.g. Brown v. The Dow Chem. Co.,
Civil Action No. 3:13-cv-359-CWR-FKB (S.D. Miss.)(showing, on
review, that three Motions are currently pending in that case).
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III.

Conclusion

For the foregoing reasons:
IT IS THEREFORE ORDERED that Plaintiff’s Notice of Application
and Application to Set Aside Final Judgment; For Judgment on the
Pleadings or Summary Adjudication on Liability on it’s Merits
[Docket No. 88] is hereby denied.
IT IS FURTHER ORDERED that Plaintiff’s Notice of Application
and Application for Injunctive Relief [Docket No. 87] is hereby
dismissed as moot.
IT IS FURTHER ORDERED that the Motions of Defendants for Rule
11 Sanctions [Docket Nos. 89 and 94] are hereby granted to the
extent that Plaintiff will be barred from filing any other motions,
applications, or other pleadings in this civil action without prior
approval from a United States District or Magistrate Judge.
IT IS FURTHER ORDERED that Plaintiff, Tyree Brown, is hereby
barred from filing any additional motion, application, or any other
pleading in this Civil Action unless the pleading is accompanied by
advance written permission by a district or magistrate judge
granting leave to file that pleading.
SO ORDERED this the 12th day of May, 2015.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

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