Easterling v. State of Ohio

Filing 50

REPORT AND RECOMMENDATIONS re 49 MOTION filed by Warren Easterling - Any Rule 60(b) motion relying on pre-existing law and filed twenty-two months after judgment is untimely and Easterlings Motion should be denied on that basis Objections to R&R due by 8/6/2015. Signed by Magistrate Judge Michael R. Merz on 7/18/15. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WARREN EASTERLING,
Petitioner,

:

Case No. 3:13-cv-024
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vs:
STATE OF OHIO,
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF
FROM JUDGMENT
This case is before the Court on Plaintiff’s Motion for Relief from Judgment (Doc. No.
49).
Final judgment was entered in this case September 4, 2013 (Doc. Nos. 37, 38).
Easterling appealed, but his appeal was dismissed by the Sixth Circuit for want of prosecution.
Easterling v. Ohio Attorney General, Case No. 12-4122 (6th Cir. Apr. 16, 2014)(unreported, copy
at Doc. No. 48).
Fed. R. Civ. P. 60(b) reads as follows:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. 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);
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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(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.
Easterling does not indicate which subsection of Rule 60(b) he is relying on. Under Fed.
R. Civ. P. 60(c), motions made under Fed. R. Civ. P. 60(b)(1), (2), or (3) must be made within
one year after the entry of the judgment or order or the date of the proceeding. The one-year
time limit on a 60(b) motion is jurisdictional. Arrieta v. Battaglia, 461 F.3d 861, 864 (7th Cir.
2006), cited with approval in Mitchell v. Rees II, 261 Fed. Appx. 825, 2008 U.S. App. LEXIS
927 (6th Cir. 2008). To the extent Easterling is relying on 60(b)((1), (2), or (3), his Motion is
barred by Rule 60(c).
Rule 60(c) also requires all motions under Rule 60(b) to be filed within a reasonable time
after judgment. Easterling’s Motion relies on case law which was reported well before final
judgment in this case, much of it already cited to the Court. Any Rule 60(b) motion relying on
pre-existing law and filed twenty-two months after judgment is untimely and Easterling’s Motion
should be denied on that basis.
July 18, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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