Lane v. Wexford Health Sources (Contreator) et al

Filing 81

REPORT AND RECOMMENDATIONS that 74 , 76 & 78 MOTIONS to Dismiss be denied. Objections to due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/27/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

William L. Lane,

:

Plaintiff,
v.

:
:

Wexford Health Sources,
(Contreator), et al.,
Defendants.

Case No. 2:10-cv-389

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
This matter is before the Court to consider three separate
motion to dismiss filed by Plaintiff William L. Lane.
Vanessa Sawyer has responded to all of them.

Defendant

For the following

reasons, it will be recommended that all three motions be denied.
Some brief background is helpful to put the motions into the
proper context.

This case was dismissed, and judgment was

entered against Mr. Lane, on August 12, 2011.

He had filed a

premature notice of appeal on May 9, 2011; the Court subsequently
denied him leave to appeal in forma pauperis and certified that
the appeal was not taken in good faith.

(Doc. 71).

In an order

filed on January 7, 2013, the Court of Appeals held, first, that
the only order covered by the notice of appeal was the grant of
summary judgment to the Wexford defendants, and, second, that
this Court appropriately entered judgment in their favor.
72).

(Doc.

The mandate issued on January 31, 2013, and Mr. Lane took

no further appeal, so at that point, the case ended.
Mr. Lane has now moved for an order of dismissal.

His first

motion, Doc. 74, states simply that he moved to dismiss the case
“against Wexford Health Sources and Defendants” and that “[n]o
further action will be taken in this Court.”

His second motion,

Doc. 76, filed less than a month later, is lengthier, but less

clear; it recites the fact that he failed to file a notice of
appeal after the Court had granted judgment to Ms. Sawyer, cites
to Fed.R.Civ.P. 60(b)(2)(but does not argue why Mr. Lane should
be granted any relief under that Rule), and appears to request a
“DISMISSAL REASON.”

Id. at 2.

The third and final motion, filed

within a month of the second, asks the Court to dismiss the case
against Ms. Sawyer without prejudice.

Reading between the lines,

it is possible that Mr. Lane is asking that a new dismissal entry
be filed with respect to Ms. Sawyer so that he can appeal that
dismissal.
The primary problem with all three of Mr. Lane’s motions is
that this case is over.

The Court granted summary judgment to

Ms. Sawyer in its Opinion and Order filed on August 12, 2011.
Mr. Lane did not appeal that order.
final.

When he did not, it became

Cf. Towsend v. Comm’r of Social Security, 415 F.3d 578

(6th Cir. 2005)(district court order becomes final when the time
for filing a notice of appeal expires).

Since there is already a

final judgment on record with respect to the claims against Ms.
Sawyer, there is no basis for entering a second judgment, and, in
particular, for an order dismissing the claims without prejudice.
For any revision to the judgment to be made, Mr. Lane would have
to come forward with evidence to support the application of
Fed.R.Civ.P. 60(b) - and, more specifically, subsections (4)
through (6) of that Rule, since Rule 60(c) provides that “[a]
motion under Rule 60(b) must be made within a reasonable
time--and for reasons (1), (2), and (3) no more than a year after
the entry of the judgment or order or the date of the
proceeding.”

The first of the three motions at issue was filed

more than two years after the Court’s judgment of August 12,
2011, and Mr. Lane has not advanced any argument that the
judgment was void, was satisfied, released, or discharged, or
that there is any other reason to vacate it in favor of a new
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judgment which changes the nature of the dismissal.
For all of these reasons, it is recommended that the three
motions for dismissal (Docs. 74, 76 and 78) be denied.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may accept,

reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions.
28 U.S.C. §636(b)(1)(C).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/Terence P. Kemp
United States Magistrate Judge

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