Brooks v. Miami Valley Hospital et al

Filing 39

SUPPLEMENTAL REPORT AND RECOMMENDATIONS re 30 MOTION to Vacate 28 Order Adopting Report and Recommendations,, filed by Mark A Brooks. It is therefore again respectfully recommended that the Motion for Relief from Judgmentbe denied. Objections to R&R due by 5/6/2013. Signed by Magistrate Judge Michael R Merz on 4/17/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK BROOKS,
:
Plaintiff,

Case No. 3:11-cv-318
:

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-vsMIAMI VALLEY HOSPITAL, et al.,
:
Defendants.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This case is before the Court on Plaintiff’s Objections (Doc. No. 34) to the Magistrate
Judge’s Report and Recommendations recommending that Plaintiff’s Motion for Relief from
Judgment be denied (Doc. No. 33). Defendants’ filed a timely Response to the Objections (Doc.
No. 36) and Judge Rice has recommitted the matter to the Magistrate Judge for consideration of
the Objections (Doc. No. 35). Without authority under Fed. R. Civ. P. 72 and without leave of
court, Plaintiff has filed a Reply to Defendants’ Response (Doc. No. 38).
Having previously remanded this case to the Common Pleas Court but reserving the
question of sanctions for improper removal, Judge Rice imposed sanctions on August 22, 2012
(the “Sanctions Order,” Doc. No. 28).

Plaintiff moved to vacate the Sanctions Order on the

grounds that Defendants’ claim for fees and expenses for improper removal had been settled in
the Common Pleas Court after remand and this Court therefore lacked jurisdiction to grant the
sanctions (Motion, Doc. No. 30, PageID 1036). The parties had reserved all questions of
interpretation of the Common Pleas Settlement Agreement to that court. The Magistrate Judge

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accordingly recommended denying the Motion to Vacate without prejudice to its renewal if
Plaintiff obtained a favorable ruling from Judge Tucker, adopting his interpretation (R&R, Doc.
No. 33, PageID 1062-1063).
Plaintiff makes no objection to the Magistrate Judge’s analysis of his assertion the
sanctions matter was settled. Instead, he completely shifts ground and now says the Sanctions
Order should be vacated because it was never served on him by the Clerk (Objections, Doc. No.
34, PageID 1065-1066). Instead of asserting the sanctions claim was settled, he now seeks to
appeal the Sanctions Order and to obtain vacation and re-entry of the Sanctions Order so his
appeal will be timely. Id. As authority for that position, he relies on Tubbs v. Campbell, 731
F.2d 1214 (5th Cir. 1984); Unlimited Acquatic Enterprises, Inc., v. Smithsonian Institute, 500
F.2d 808 (D.C. Cir. 1974); and Primus Automotive Financial Services, Inc., v. Otto-Wal, Inc.,
284 F. Supp. 2d 845 (N.D. Ohio 2003).
Defendants note that any question of service of the Sanctions Order by the Clerk is
immaterial to the issue of whether the sanctions issue was settled (Response, Doc. No. 36,
PageID 1068). Defendants argue that Plaintiff’s new rationale for vacation, made for the first
time in the Objections, is not well taken under Fed. R. Civ. P. 77(d). That Rule provides:
(d) Serving Notice of an Order or Judgment.
(1) Service. Immediately after entering an order or judgment, the
clerk must serve notice of the entry, as provided in Rule 5(b), on
each party who is not in default for failing to appear. The clerk
must record the service on the docket. A party also may serve
notice of the entry as provided in Rule 5(b).
(2) Time to Appeal Not Affected by Lack of Notice. Lack of
notice of the entry does not affect the time for appeal or relieve--or
authorize the court to relieve--a party for failing to appeal within
the time allowed, except as allowed by Federal Rule of Appellate
Procedure (4)(a).

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In turn, Fed. R. App. P. 4(a)(6) provides:
(6) Reopening the Time to File an Appeal. The district court may
reopen the time to file an appeal for a period of 14 days after the
date when its order to reopen is entered, but only if all the
following conditions are satisfied:
(A) the court finds that the moving party did not receive notice
under Federal Rule of Civil Procedure 77(d) of the entry of the
judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party receives
notice under Federal Rule of Civil Procedure 77(d) of the entry,
whichever is earlier; and
(C) the court finds that no party would be prejudiced.
The docket in this case does not show that the Clerk ever gave Plaintiff notice of the
entry of the Sanctions Order1. If the Court then treats Plaintiff’s Objections as a new motion to
extend the time for appeal, then Plaintiff must satisfy the 180 day requirement in Fed. R. App. P.
4(a)(6)(B). He has not. The 180th day after August 22, 2012, was February 18, 2013, and
Plaintiff’s Objections – the first time when he indicated to this Court any intention to appeal –
were not filed until April 3, 2013, the 224th day after the Sanctions Order was entered. Even his
original Motion to Vacate – which does not mention any intention to appeal – was not filed until
February 28, 2013, already the 190th day after the sanctions order was entered.
Plaintiff essentially concedes that both his filings were too late to qualify under Fed. R.
App. P. 4(a)(6)(Reply, Doc. No. 38, PageID 1073-1074). This, he says, is the very reason why
the Court should vacate the Sanctions Order and re-enter it, to protect his “due process right to
appeal guaranteed to him pursuant to 28 U.S.C. § 1291.” Id. at PageID 1073. As authority for
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Plaintiff suggests a distinction between service of a copy of a judgment or order and service of a notice of a
judgment or order (Reply, Doc. No. 38, PageID 1072). Fed. R. Civ. P. 77 does not support that distinction. It does
not require service of a copy of the judgment or order, but only of notice that one has been filed. Of course, the
easiest way for the Clerk to give notice is to send a time-stamped copy of the order, but the Rule does not prescribe
how notice is to be given.

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this end-run around the Rules of Appellate Procedure, Plaintiff relies on Hill v. Hawes, 320 U.S.
520 (1944). That case interpreted the rule-making authority of the D.C. Circuit Court of Appeals
to adopt a time for appeal under the Acts of Congress of February 9, 1893 (27 Stat. 434) and July
30, 1894 (28 Stat. 160). It held that court could adopt a twenty-day time limit, shorter than the
six-month limit provided in the Everts Act which created the circuit courts of appeals (26 Stat.
826).

Of course, none of those statutes has any application in this case; they have all been

superseded by the Rules Enabling Act, 28 U.S.C. §2071, pursuant to which both Fed. R. Civ. P.
77 and Fed. R. App. P. 4(a)(6). The Supreme Court expressly found that Fed. R. Civ. P. 60 did
not apply in these circumstances, but found no abuse of discretion in the vacation of the
judgment because it was still done “in term,” a concept which no longer applies to federal courts.
The decision provoked a strong dissent from Chief Justice Stone who wrote:
Petitioner, by the exercise of the diligence required by the Federal
Rules of Civil Procedure could have learned of the entry of the
judgment against him and have taken a timely appeal. His case is
not hard enough to afford even the proverbial apology for our
saying that federal judges, by the reentry of a judgment for no
other purpose, are free to make a dead letter of the statutory limit
of the period for appeal.

Id. at 526. Of course, this Court has power to vacate and re-enter the judgment, even though the
effect would be to allow Mr. Brooks to appeal the Sanctions Order. But his case also is not so
hard as to suggest this Court ignore the policy of Fed. R. App. R. 4(a)(6) to allow him an appeal.
As noted in the original Report, Mr. Brooks learned of the Court’s remand order (Doc. No. 26)
the very day it was issued which he must have done by examining the docket or calling the
Clerk’s Office. If he had displayed that degree of diligence with respect to the Sanctions Order,
he would have learned of it in time to make a timely request for extension of the appeal time.
It is therefore again respectfully recommended that the Motion for Relief from Judgment
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be denied.
April 17, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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