Sizemore v. Hissom et al
Filing
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opinion and ORDER denying 47 Motion ; denying 48 Motion to Stay; granting 53 Motion for Leave to File. Signed by Judge James L Graham on 4/11/14. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dr. Terrie Sizemore,
Case No. 2:12-cv-1166
Plaintiff,
v.
Judge Graham
Heather Lynn Hissom, et al,
Magistrate Judge Abel
Defendants.
OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Motion for Relief from Judgment (doc.
47), Motion to Stay (doc. 48), and Motion for Leave to File Reply (doc. 53). For the reasons that
follow, the Court will deny the Plaintiff’s Motion for Relief from Judgment (doc. 47); deny the
Plaintiff’s Motion to Stay (doc. 48); and grant the Plaintiff’s Motion for Leave to File Reply
(doc. 53).
I.
Background
The Plaintiff, a licensed veterinarian, brought suit under 42 U.S.C. § 1983 against the
Defendants for alleged constitutional violations committed during their civil investigation and
prosecution of the Plaintiff before the Ohio Veterinary Medical Licensing Board (the Board) and
their conduct during subsequent state court proceedings. Generally, the Plaintiff accused the
Defendants of three types of misconduct: “1) Intimidating plaintiff and threatening her with legal
action; 2) ignoring legal arguments and facts presented by plaintiff and making false allegations
and promoting alternate ‘fraudulent’ legal arguments in judicial or disciplinary proceedings; and
3) refusing to investigate or protect plaintiff from other defendants’ actions.” Opinion & Order at
5–6, doc. 33. On January 31, 2013, the Defendants filed Motions to Dismiss (docs. 15 & 16),
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which the Court subsequently granted on May 5, 2013, based on the Plaintiff’s failure to state a
claim upon which relief could be granted.
On May, 8, 2013, the Plaintiff filed a Motion for Reconsideration (doc. 37). In her
Motion, she asserted that:
Plaintiff has pled sufficiently pursuant to the Federal Rules of Civil Procedure. In
addition, Plaintiff has pled facts pertaining to the allegations of fraud. Plaintiff has
pled sufficient facts that these Defendants acted outside the scope of their
employment. At no time has any Defendant pled argument that entitles them to
have this Federal action dismissed.
Pl.’s Mot. for Reconsideration at 1, doc. 37. The Plaintiff took particular issue with the Court’s
dismissal of the case prior to discovery, arguing that it was unjust for the Court to dismiss her
claims without permitting her the opportunity to discover evidence in support of those claims. Id.
at 4–5.
In ruling on the Plaintiff’s Motion for Reconsideration, the Court noted that “[s]everal of
plaintiff’s arguments in support of her motion for reconsideration are attempts to re-argue the
merits of the motion to dismiss already considered and granted by the Court.” Opinion & Order
at 3, doc. 46. Nonetheless, the Court addressed the Plaintiff’s concerns that dismissal of her
claims prior to discovery resulted in a manifest injustice, explaining that “the Court has held that
even if discovery resulted in evidence supporting all of her allegations, she would still not be
entitled to the relief she claims . . . In such a situation, the plaintiff has no right to proceed with
discovery and her claims are properly dismissed.” Id. at 3.
Six months after the denial of her Motion for Reconsideration, the Plaintiff filed a Motion
for Relief from Judgment (doc. 47), Motion to Stay (doc. 48), and Motion for Leave to File
Reply (doc. 53).
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II.
Standard of Review
Federal Rule of Civil Procedure 60(b) provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
misrepresentation, or misconduct by an opposing party;
or
extrinsic),
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
“Relief under Rule 60(b) is circumscribed by public policy favoring finality of judgments and
termination of litigation.” Ford Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 469 (6th
Cir. 2007) (brackets, citation, and internal quotation marks omitted). “[T]he party seeking relief
under Rule 60(b) bears the burden of establishing the grounds for such relief by clear and
convincing evidence.” Info–Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 454 (6th Cir.
2008) (citing Crehore v. United States, 253 F. App’x 547, 549 (6th Cir. 2007)).
III.
Discussion
The Plaintiff identifies five grounds for relief from the Court’s judgment in this case: (1)
mistake and excusable neglect; (2) newly discovered evidence; (3) fraud and misconduct by the
Defendants; (4) the judgment is void; and (5) relief under Rule 60(b)(6). The Court addresses
each of these arguments in turn.
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A.
Rule 60(b)(1)
First, the Plaintiff argues that the Court “made a mistake in dismissing Plaintiff’s action
on the basis of her being required to first seek immunity determination in the Court of Claims.”
Pl.’s Mot. for Relief from J. at 4, doc. 47. In the Plaintiff’s view, she complied with Rule 8’s
pleading requirement and the Defendants were not entitled to immunity. Therefore, she
maintains that the Court should not have granted the Defendants’ Motion to Dismiss.
Rule 60(b)(1) is “intended to provide relief to a party in only two instances: (1) when the
party has made an excusable litigation mistake or an attorney in the litigation has acted without
authority; or (2) when the judge has made a substantive mistake of law or fact in the final
judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (citing Cacevic v.
City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)). A “claim of legal error in the underlying
judgment falls within the definition of mistake under Rule 60(b)(1) .” Reyes, 307 F.3d at 456
(citing Pierce v. United Mine Workers of Am., Welfare & Ret. Fund for 1950 & 1974, 770 F.2d
449, 451 (6th Cir. 1985)).
Here, the Plaintiff offers vague and conclusory arguments in support of her contention
that the Court erred in granting the Defendants’ Motion to Dismiss. Generally, the Plaintiff
asserts that the Defendants were not entitled to immunity and that her § 1983 claims were
properly pled pursuant to Rule 8. These arguments do not establish by clear and convincing
evidence that the Court made a substantive mistake of law or fact in its final judgment or order.
Moreover, parties may not use Rule 60(b) motions as “a second chance to convince the court to
rule in his or her favor by presenting new explanation, new legal theories, or proof,” Jinks v.
Allied Signal, Inc., 250 F.3d 381, 385 (6th Cir. 2001) (citing Couch v. Travelers Ins. Co., 551
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F.2d 958, 959 (5th Cir. 1977)), and a Rule 60(b) motion is not a substitute for an appeal, Hopper
v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). The Plaintiff’s
argument is therefore without merit.
Second, the Plaintiff contends that relief from judgment is warranted under Rule 60(b)(1)
because of her confusion regarding her appellate rights. Although difficult to understand, it
appears the Plaintiff failed to timely appeal this Court’s Order granting the Defendant’s Motion
to Dismiss because an Ashland County Court of Common Pleas declared her a vexatious litigator
and ordered her “not to take any further action in any Court in Ohio.” Pl.’s Mot. for Relief from
J. at 7. Apparently, the Plaintiff mistakenly interpreted this to mean that she could not continue
prosecuting any lawsuit, including the present case, in state or federal court in Ohio. Therefore,
the Plaintiff argues that she should be permitted the opportunity to appeal the Court’s Order
granting the Defendant’s Motion to Dismiss.
This argument is unrelated to the Court’s Order granting the Defendant’s Motion to
Dismiss despite being framed in terms of a Rule 60(b) motion. Rather than seeking relief from
the Court’s judgment, the Plaintiff is effectively asking this Court to grant her leave to file an
otherwise untimely appeal based on her misunderstanding of the state court’s order declaring her
a vexatious litigator. Rule 60(b) does not provide for this form of relief. 1
B.
Rule 60(b)(2)
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In its Order (doc. 46) on the Plaintiff’s Motion for Reconsideration (doc. 37) and Motion for Extension of Time to
Appeal (doc. 41), the Court explained that the Plaintiff’s filing of a motion for reconsideration under Rule 59(e),
“suspend[ed] the running of the time for the filing of a notice of appeal. See Fed. R. App. Pro. 4(a)(4).” Order at 4,
doc. 46. Further, the Court stated, “both plaintiff and defendants appear to be under a misconception that Judge
Pokorny’s order declaring plaintiff to be a vexatious litigator in some way limits the extent to which she may appear
as a pro se litigant in this United States Court.” Id. The Court clarified that “Judge Pokorny’s order requiring his
express permission to proceed in any Ohio trial court is inapplicable to the federal courts of the United States.” Id.
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Next, the Plaintiff argues that newly discovered evidence demonstrates that Defendant
McKew presented perjured testimony to the Ashland County Court of Common Pleas on May
10, 2013 at a hearing concerning a motion requesting that the Plaintiff be declared a vexatious
litigator.
A motion for relief from judgment under Rule 60(b)(2) can be granted only based on
“newly discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). To prevail, a “‘movant
must demonstrate (1) that it exercised due diligence in obtaining the information and (2) [that]
the evidence is material and controlling and clearly would have produced a different result if
presented before the original judgment.’” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615
(6th Cir. 2012) (quoting Good v. Ohio Edison Co., 149 F.3d 413 (6th Cir. 1998)).
Although the Plaintiff asserts that she has newly discovered evidence, she does not
describe that evidence with any particularity and has not submitted it in support of her Rule 60(b)
motion. In addition, the Plaintiff does not present any argument that this newly discovered
evidence could not have been discovered in a timely fashion with reasonable diligence. Finally,
the newly discovered evidence relates to a separate state court proceeding concerning that court’s
finding that the Plaintiff was a vexatious litigator and the Plaintiff makes no attempt to explain
how that evidence would have produced a different result in the present case if available to the
Court prior to its judgment. The Plaintiff’s Rule 60(b)(2) argument is therefore without merit.
C.
Rule 60(b)(3)
Under Rule 60(b)(3), the Plaintiff argues:
fraud is the basis for her entire litigation in the District Court . . . This entire
action is based upon fraud as well as the deprivation of discovery/disclosure
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would constitute abuse of discretion by this District Court-permitting relief per
60(b) and default judgment. Plaintiff has proven fraud and provided sufficient
evidence of fraud. Fraud has been such a nature to have prevented the Plaintiff
from presenting the merits of her case.
Pl.’s Mot. for Relief from J. at 11–12. According to the Plaintiff, Defendants Cole and Kessler
“concealed material facts that would confirm all allegations made by Plaintiff and this constitutes
witness tampering and this permits her relief.” Id. at 13. Presumably, the Plaintiff contends that
the Defendants have perpetrated a fraud on the court.
In the context of Rule 60(b)(3), the Sixth Circuit defines fraud as “the knowing
misrepresentation of a material fact, or concealment of the same when there is a duty to disclose,
done to induce another to act to his or her detriment.” Info-Hold, Inc. v. Sound Merchandising,
Inc., 538 F.3d 448, 456 (6th Cir. 2008) (citing Black’s Law Dictionary 685 (8th ed. 2004); 37
Am. Jur. 2d Fraud and Deceit § 23 (2001); 12 Moore’s Federal Practice § 60.43[1][b] (3d ed.
1999)). “Fraud on the court refers to ‘the most egregious conduct involving a corruption of the
judicial process itself.’” General Medicine, P.C. v. Horizon/CMS Health Care Corp., 475 F.
App’x 65, 71 (6th Cir. 2012) (quoting 11 Charles Alan Wright et al., Federal Practice &
Procedure § 2870 (West 2011)). To demonstrate a fraud on the court, a moving party must
present clear and convincing evidence of five elements: “‘1) [conduct] on the part of an officer of
the court; that 2) is directed to the judicial machinery itself; 3) is intentionally false, willfully
blind to the truth, or is in reckless disregard of the truth; 4) is a positive averment or a
concealment when one is under a duty to disclose; and 5) deceives the court.’” Johnson v. Bell,
605 F.3d 333, 339 (6th Cir. 2010) (quoting Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir.
2009)).
Here, in imprecise terms, the Plaintiff repeatedly accuses the Defendants of committing
fraud but presents no evidence in support of those accusations. Nor does the Plaintiff identify the
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material facts that she accuses the Defendants of concealing. Moreover, the Plaintiff fails to
explain how the Defendants’ alleged fraud impacted the Court’s decision to grant the
Defendants’ Motion to Dismiss. Cf. Info–Hold, Inc., 538 F.3d at 455 (Rule 60(b)(3) “clearly
requires the moving party to show that the adverse party committed a deliberate act that
adversely impacted the fairness of the relevant legal proceeding”). For these reasons, the
Plaintiff’s Rule 60(b)(3) fraud argument fails.
D.
Rule 60(b)(4)
The Plaintiff’s next argument is difficult to understand. It appears that she believes that
the Court should grant her relief under Rule 60(b)(1) and that having established grounds for
relief under Rule 60(b)(1), the Court’s judgment is now void.
The Plaintiff appears to misunderstand the meaning of Rule 60(b)(4). Rule 60(b)(4)
allows a court to “relieve a party . . . from a final judgment, order, or proceeding” when “the
judgment is void.” “Rule 60(b)(4) applies only in the rare instance where a judgment is premised
either on a certain type of jurisdictional error or on a violation of due process that deprives a
party of notice or the opportunity to be heard.” United States Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 271 (2010). The Plaintiff has not provided any evidence of a jurisdictional error or a
violation of due process that deprived her of notice or the opportunity to be heard. Therefore, the
Plaintiff’s Rule 60(b)(4) argument fails.
E.
Rule 60(b)(6)
In conclusion, the Plaintiff relies on Rule 60’s catchall provision, (b)(6), as an alternative
basis for relief from the Court’s judgment. The Plaintiff maintains:
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Judge Graham was required to have knowledge of the_facts and permit discovery.
No reasonable person would come to the conclusion the Defendant parties have
‘done no wrong,’ that any party was entitled to immunity, that deprivation of
Constitutional rights required immunity determination in the Court of Claims, and
that the merits listed in the action were/are irrelevant when clearly the facts and
evidence and laws would lead any reasonable party to a different conclusion.
Pl.’s Mot. for Relief from J. at 17. The Plaintiff further insists that the Defendants extorted and
coerced her in an attempt to enter into an illegal settlement agreement. Id. In the Plaintiff’s view,
the Court “did not protect the Plaintiff’s interests equally as the government parties.” Id.
Relief from judgment under Rule 60(b)(6) is available only in exceptional or
extraordinary circumstances. McCurry ex. rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298
F.3d 586, 596 (6th Cir. 2002); Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990).
The subsections of Rule 60(b) are “mutually exclusive,” Pioneer Inv. Servs. Co. v. Brunswick
Assocs., Ltd. P’ship, 507 U.S. 380, 393 (1993), and subsection (6) “can be used only as a
residual clause in cases which are not covered under the first five subsections of Rule 60(b),”
Pierce, 770 F.2d at 451. “The decision to grant Rule 60(b)(6) relief is a case-by-case inquiry that
requires the trial court to intensively balance numerous factors, including the competing policies
of the finality of judgments and the incessant command of the court’s conscience that justice be
done in light of all the facts.” Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009) (quoting Blue
Diamond Coal Co. v. Trustees of UMWA Combined Benefits Fund, 249 F.3d 519, 529 (6th Cir.
2001)) (alteration omitted).
The Plaintiff has not presented evidence of “exceptional or extraordinary circumstances”
that would justify relief from the Court’s judgment under Rule 60(b)(6). Instead, the Plaintiff
restates arguments that she has previously raised in her Rule 60(b) motion, her response to the
Defendants’ Motion to Dismiss, and her Motion for Reconsideration. The Plaintiff maintains that
the Court committed legal error in granting the Defendants’ Motion to Dismiss. This type of
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argument is exclusive to Rule 60(b)(1) and is therefore not an appropriate basis for relief from
judgment under Rule 60(b)(6). See Pierce, 770 F.2d at 451(subsection (6) “can be used only as a
residual clause in cases which are not covered under the first five subsections of Rule 60(b)”).
IV.
Motion to Stay
On January 13, 2014, five days after filing her Motion for Relief from Judgment, the
Plaintiff filed a Motion to Stay (doc. 48). In her Motion to Stay, the Plaintiff stated that she:
Respectfully requests a stay of the proceedings here regarding the post
judgment motion filed by this Plaintiff for relief pursuant to FRCP 60(b).
In the interest of justice, Plaintiff has requested an immediate appeal of an
expected denial of her 60(b) motion filed here. She has filed for a stay of this
District Court’s proceedings in the Sixth Circuit Court of Appeals as well as she is
now filing here.
Pl.’s Mot. to Stay at 1, doc. 48. It is well-settled that appeals can be taken from final denial of a
motion to vacate a judgment. 15B Charles A. Wright and Arthur R. Miller, Federal Practice and
Procedure § 3916 (2d ed. 2013). However, an appeal cannot be taken before the trial court has
completed action on the motion. Absent the Court first ruling on the Plaintiff’s Motion for Relief
from Judgment, she would not be permitted to appeal. The Court will therefore deny the
Plaintiff’s Motion to Stay.
V.
Conclusion
For the foregoing reasons, the Court (1) DENIES the Plaintiff’s Motion for Relief from
Judgment (doc. 47); DENIES the Plaintiff’s Motion to Stay (doc. 48); and GRANTS the
Plaintiff’s Motion for Leave to File Reply (doc. 53).
IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
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DATE: April 11, 2014
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