Clark et al v. YRC Freight et al
ORDER denying 105 plaintiffs' motion for reinstatement of case; and plaintiffs' late-filed objection to the bill of costs 106 is DENIED. Clerk directed to send a copy of this order by regular and certified mail to plaintiffs. Signed o n 8/30/16 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 8/30/2016 - Copy of Order mailed via first class and certified mail to Mark Clark at 3520 Rowland, Kansas City, KS 66104 (Rct No. 7015 0640 0000 9979 5170) and to William Person at 4936 Wabash, Kansas City, MO 64130 (Rct No. 7015 0640 0000 9979 5187) (Anderson, Christy).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
MARK CLARK and
Case No. 4:14-cv-00668-FJG
Pending before the Court are (1) Plaintiffs’ Motion for Reinstatement of Case
(Doc. No. 105), filed on May 16, 2016; and (2) Plaintiff’s Response to Assessment of
Costs (Doc. No. 106).
Summary judgment in favor of defendant was granted on March 8, 2016. In the
same order, the Court denied plaintiffs’ motion for appointment of counsel, as the issue
was moot upon grant of summary judgment. The deadline for filing a notice of appeal
passed in April 2016. See Fed. R. App. P. 4(a)(1)(A) (providing that a notice of appeal
must be filed within 30 days after entry of judgment). No notice of appeal was timely
filed. On March 29, 2016, defendant filed its Bill of Costs. Objections to the Bill of Costs
were due on April 15, 2016. Plaintiffs filed no objections, and on April 28, 2016, costs
were taxed in the amount of $4,235.73.
On May 16, 2016, plaintiffs filed a pro se document (signed only by plaintiff Mark
Clark), requesting reinstatement of their case due to the fact that they had requested
appointment of counsel, and were not aware that the Court had listed them as
proceeding pro se. See Motion, Doc. No. 105. Plaintiffs indicated they contacted NELA
(“National Employment Lawyers Association), which informed them that they would not
represent them because they did not know the facts of the case and believed they were
out of time. Plaintiffs request that the Court appoint them counsel, and waive filing fees
because of various family hardships.
In response to these two issues, defendant argues that (1) the request for
counsel is moot because summary judgment was granted in favor of defendant; and (2)
plaintiffs have not provided a factual or legal basis for reconsidering the Court’s
summary judgment ruling (noting that the briefing of same was complete before the
Court granted plaintiffs’ original counsel’s motion to withdraw). Defendant also notes
that plaintiffs have not denominated this motion as a request for relief under Rule 59(e)
or Rule 60(b). Plaintiffs have missed the deadline for filing a motion to alter or amend
judgment under Rule 59(e), as such a motion is due no later than 28 days after the
entry of the judgment. Under Rule 60(b), the Court may relieve a party from an order or
final judgment “for any one of the enumerated reasons in the rule, including excusable
neglect, surprise, newly discovered evidence, fraud, a void judgment, or any other
reason that would justify relief.” Employers Reinsurance Corp. v. Massachusetts Mutual
Life Ins. Co., No. 06-0188-CV-W-FJG, 2008 WL 4693513, at *1 (W.D. Mo. Oct. 23,
2008). None of the enumerated reasons are present here. As a “district court should
grant a Rule 60(b) motion only upon an adequate showing of exceptional
circumstances,” (Harris v. Potter, No. 4:08-CV-1191 CAS, 2009 WL 1045475, *2 (E.D.
Mo. April 20, 2009)), and no exceptional circumstances are present here, plaintiffs’
motion for reinstatement of the case (Doc. No. 105) is DENIED.
In a separate document (Doc. No. 106), plaintiffs submit a letter dated May 5,
2016 (and signed by neither plaintiff), stating that “[d]ue to the death of 2 family
members within days of each other, I am requesting the amount [of costs] be waived
and forgiveness for not responding before the deadline of April 28th.”
responds that plaintiffs’ objection is untimely, and that plaintiffs have not shown that the
requested costs were improper or that the Clerk’s office erred in taxing costs against
them. The Court agrees, and plaintiffs’ late-filed objection to the bill of costs (Doc. No.
106) is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court send a copy of this order
by regular and certified mail to plaintiffs at the following addresses:
3520 Roeland Avenue
Kansas City, Kansas 66104
4936 Wabash Avenue
Kansas City, Missouri 64130
IT IS SO ORDERED.
Date: August 30, 2016
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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