Mehdipour v. Midwest City City of et al

Filing 56

ORDER denying 49 Motion to Terminate Counsel and denying 50 Motion to Vacate Judgment. Signed by Honorable Charles Goodwin on 01/22/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ALI MEHDIPOUR,
Plaintiff,
v.
CITY OF MIDWEST CITY et al.,
Defendants.

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Case No. CIV-17-298-G

ORDER
Now before the Court is Plaintiff Ali Mehdipour’s pro se Motion to Terminate
Counsel (Doc. No. 49) and Motion to Vacate Judgment (Doc. No. 50). Defendant The City
of Oklahoma City (“City”) has responded in opposition to Plaintiff’s latter motion. See
Def. City’s Obj. to Pl.’s Mot. to Vacate J. (Doc. No. 51).
Mehdipour was granted an extension of time to file a reply in support of his Motion
to Vacate Judgment, see Order of Jan. 9, 2019 (Doc. No. 54), and the Court has now
received and reviewed Plaintiff’s submission. See Pl.’s Reply to Def.’s Obj. to Mot. to
Vacate (Doc. No. 55). Plaintiff has not presented any additional argument or case law in
his reply; he has instead stated that he is “preserv[ing] his right to file [a] supplement[ ]
with his response due to [in]adequate time to research and to present [a] meaningful
respon[se] to this . . . Court.” Id. at 1. Because Plaintiff has had sufficient opportunity to
file a reply with argument and authority, the Court declines to grant Plaintiff more time
and deems Plaintiff’s motions at issue.

BACKGROUND
Plaintiff filed this action on March 20, 2017, against two municipalities, the City
and City of Midwest City (“Midwest City”), three individuals employed as Midwest City
police officers, Brett Baker, Bruce Glover, and Jeremy Zuniga, and one individual
employed as a City police officer, Bradley Conley. See Compl. (Doc. No. 1). Relief was
sought against these Defendants under both federal and state law for Plaintiff’s alleged
unlawful arrest and prosecution. After motion practice, Plaintiff was permitted to file a
First Amended Complaint. See Order of July 27, 2017 (Doc. No. 18).
In his First Amended Complaint, Plaintiff again sought money damages under
federal and state law against the City, Midwest City, and Officers Baker, Glover, and
Zuniga. See First Am. Compl (Doc. No. 20). Plaintiff did not rename Officer Conley as a
defendant; he instead joined another City police officer—Jeff Coffey.1 See id.
Because Plaintiff did not serve Officer Coffey within the time permitted by Federal
Rule of Civil Procedure 4(m) or show good cause for his failure to act, the Court on
November 29, 2017, dismissed Plaintiff’s claims against Officer Coffey without prejudice.
See Order of Nov. 29, 2017 (Doc. No. 38). That same date, the Court dismissed Plaintiff’s
claims against Officer Glover, see Order of Nov. 29, 2017 (Doc. No. 39), Officer Zuniga,
see Order of Nov. 29, 2017 (Doc. No. 40), Officer Baker, see Order of Nov. 29, 2017 (Doc.
No. 41), and Midwest City, see Order of Nov. 29, 2017 (Doc. No. 42). The Court also
dismissed two of the three state law claims asserted against the City: Count I (false arrest)

Defendant was also identified in the record as “Jay Coffey.” See Def. Conley’s Reply
Ex. 2 (Doc. No. 14-1) at 2.
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and Count IV (Okla. Const. art. 2, § 30). See Order of Nov. 29, 2017 (Doc. No. 43). At
that point, only Plaintiff’s state law claim for trespass against the City as set forth in Count
III of the First Amended Complaint remained. See id. at 8 n.10.
The City thereafter sought leave to move to dismiss Plaintiff’s trespass claim. See
Def. City’s App. to File Another Mot. to Dismiss (Count III) (Doc. No. 45). In lieu of
filing a response, Mehdipour, through counsel, stipulated to the dismissal of Count III
without prejudice. See Joint Stip. of Dismissal Without Prejudice (Doc. No. 46). Because
no unresolved claims then remained against any Defendant, the Clerk of the Court
terminated the matter in her records on December 14, 2017.
On April 26, 2018, Plaintiff filed a document titled “Notice of Abandonment of
Counsel.” See Doc. No. 47 (entered on docket on Apr. 27, 2018). Plaintiff complained
that his attorney had abandoned him and that he had just discovered that his case had been
dismissed. Plaintiff stated that he “believe[d] a Rule 59 or 60 motion [was] in order to
reopen the case, and request[ed] leave of the Court to file such a motion, or in the
alternative, for the Court to instruct [him] . . . how to proceed.” Id. at 1.
The Court informed Plaintiff that it could not provide legal advice or tell him how
to prosecute the matter.2 See Order of Apr. 30, 2018 (Doc. No. 48). To the extent Plaintiff

The Court advised Plaintiff that it had “‘no duty to help pro se litigants [or litigants
represented by counsel] make their case.’” Order of Apr. 30, 2018 (Doc. No. 48) at 2 n.1
(quoting United States v. Althoff, No. 93-2114, 1993 WL 542201, at *2 (10th Cir. 1993)
(citation omitted)). The Court stated that it must “‘[i]nstead . . . remain impartial and treat
both sides of a controversy the same. Were a judge to help one side of a controversy, he
[or she] would no longer be a judge but would become an adversary to the other side.’” Id.
(quoting Althoff, 1993 WL 542201, at *2 (citation omitted)). The Court further advised it
was “‘[l]ikewise . . . improper for a judge to provide legal advice to one party in a civil
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had sought additional time to file a motion under Federal Rules of Civil Procedure 59 and
60(b), the Court denied such request. See id. at 2 (citing Fed. R. Civ. P. 6(b)(2) (court must
not extend time to act under Fed. R. Civ. P. 59(b), (d), and (e) and 60(b))).
DISCUSSION
In the instant motions, Plaintiff has reported that his attorney ceased work in this
matter prior to the Court’s dismissal of Keith Sweeney on January 19, 2017. Sweeney,
however, is not a named defendant in the case-at-bar; rather, he is a defendant in another
case brought by Plaintiff in this judicial district. See Mehdipour v. Sweeney, Case No. 16411-M (W.D. Okla.). The Court therefore has disregarded Plaintiff’s statements about
instructions he gave counsel regarding Sweeney and counsel’s alleged failure to heed such
instructions.
To the extent Plaintiff has complained in the instant motions about counsel’s
litigation strategies or has sought termination of counsel, the Court again advises Plaintiff
that it cannot provide the relief Plaintiff has requested. While Plaintiff may himself
terminate his counsel, this matter is closed and Plaintiff has cited no authority that permits
the Court to interfere with, or sever, the attorney-client relationship between counsel and
Plaintiff under these circumstances.
Plaintiff has also moved the Court to set aside its Order of April 30, 2018, wherein
the Court observed that “‘[o]n December 14, 2017, Mehdipour, ‘by and thr[ough] his

controversy.’” Id. (quoting Althoff, 1993 WL 542201, at *2) (citing Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (court may not assume role of advocate for pro se
litigant)).
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attorney of record[,] and the City’ . . . filed a Joint Stipulation of Dismissal Without
Prejudice.” Order of Apr. 30, 2018 (Doc. No. 48) (West, J.) at 1 (quoting Joint Stip. of
Dismissal Without Prejudice (Doc. No. 46) at 1). Plaintiff has argued that vacatur of the
Court's Order is warranted since his attorney was not authorized to dismiss Plaintiff’s claim
for trespass against the City and the Court erred in terminating this action based on the
parties’ stipulation.3
1. Federal Rule of Civil Procedure 60(b)(4)
In support of his motion, Plaintiff has relied on Federal Rule of Civil Procedure
60(b)(4), which permits the Court to “relieve a party . . . from a final judgment, order, or
proceeding [if] . . . the judgment is void.” Fed. R. Civ. P. 60(b)(4).4 In those instances
“where Rule 60(b)(4) is properly invoked, ‘relief is not a discretionary matter’ but instead
is ‘mandatory.’” Myzer, 2018 WL 4368189, at *2 (quoting Marcus Food Co. v. DiPanfilo,
671 F.3d 1159, 1166 (10th Cir. 2011) (further quotation omitted)).

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Plaintiff has also argued that dismissal of this action was not warranted since counsel
should have pursued a claim for unlawful arrest and/or prosecution based on heritage. See
Pl.’s Mot. to Vacate J. (Doc. No. 50) at 1. Because that claim was not and is not before the
Court, the Court does not address it.
Pursuant to Federal Rule of Civil Procedure 60(c)(1), Rule 60(b)(4) “motions ‘must be
made within a reasonable time.’” Myzer v. Bush, No. 18-3067, 2018 WL 4368189, at *2
(10th Cir. Sept. 13, 2018) (quoting Fed. R. Civ. P. 60(c)(1)). However, the Tenth Circuit
“has ruled that Rule 60(b)(4) motions are effectively subject to no time limit. Or, put
another way, any time period preceding the filing of a Rule 60(b)(4) motion is reasonable
as a matter of law because such a motion claims that the underlying judgment is void ab
initio.” Id. (citing V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.9 (10th Cir. 1979) (“[I]f
a judgment is void, it is a nullity from the outset and any 60(b)(4) motion for relief is
therefore filed within a reasonable time.”)).
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A final judgment or order, however, “is not void merely because it is or may be
erroneous. For a judgment [or final order] to be void under Rule 60(b)(4), it must be
determined that the rendering court was powerless to enter it.” V.T.A., Inc., 597 F.2d at
224 (citations omitted). “In the interest of finality, the concept of setting aside a judgment
[or order] on voidness grounds is narrowly restricted.” Id. (footnote omitted).
Plaintiff has not shown that this Court lacked jurisdiction as to subject matter or the
parties; he has likewise not established that the Court’s decision to accept the parties’
stipulated dismissal of Plaintiff’s trespass claim against the City and to direct the Clerk to
terminate this action based on that stipulation “involve[d] a plain usurpation of power or .
. . [was] inconsistent with due process of law.” Id. at 224-25 (footnotes omitted).5 See
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (“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”); In re Four Seasons Sec. Laws Litig., 502 F.2d 834, 842 (10th
Cir. 1974) (judgment is void “only if the court which rendered it lacked jurisdiction of the
subject matter, or of the parties, or acted in a manner inconsistent with due process of law”).
Accordingly, the Court finds relief under Rule 60(b)(4) is not warranted.

In determining whether the Court’s acceptance of the parties’ stipulation or its decision
to terminate this action was “inconsistent with due process of law,” V.T.A., Inc., 597 F.2d
at 224 (citations omitted), the Court finds Plaintiff has advanced no argument that counsel
was not apprised at all times of these proceedings or submitted any authority that notice to
counsel of record does not comport with due process.
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2. Federal Rule of Civil Procedure 60(b)(1)
Also, arguably applicable in these circumstances is Federal Rule of Civil Procedure
60(b)(1), which permits a court to “relieve a party . . . from a final judgment, order, or
proceeding [if a] . . . mistake . . . [has been made].” Fed. R. Civ. P. 60(b)(1).6 A mistake
occurs “where . . . an attorney in the litigation has acted without authority from a party.”
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996).
A lack of authority is usually found in two situations, only one of which is present
in this case:7 where the attorney’s actions terminate the litigation. See id. (“as a general
proposition, the ‘mistake’ provision in Rule 60(b)(1) provides for the reconsideration of
judgments . . . where . . . an attorney in the litigation has acted without authority from a
party”); Thomas v. Colo. Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966). Although
Plaintiff has not cited Rule 60(b)(1) in either his motion or his reply, the Court has
nevertheless considered whether relief is warranted thereunder.
Ordinarily, “an attorney of record may not compromise, settle, or consent to a final
disposition of his client’s case without express authority.” Thomas, 366 F.2d at 139
(citations omitted). See Chavez v. Primus Auto. Fin. Servs., No. 97-2142, 1997 WL
634090, at *4 (10th Cir. Oct. 15, 1997) (“‘mere employment of an attorney does not give

Rule 60(c)(1) also requires Rule 60(b)(1) motions “be made within a reasonable time,”
but “no more than a year after the entry of the judgment or order . . . .” Fed. R. Civ. P.
60(c)(1). This matter was terminated on December 14, 2017, pursuant to the Joint
Stipulation of Dismissal Without Prejudice (Doc. No. 46) filed that same date. Plaintiff’s
Motion to Vacate Judgment was filed on November 26, 2018. See Doc. No. 50.
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The second situation is where an attorney has entered an appearance without the client’s
knowledge. See FDIC v. Oaklawn Apts., 959 F.2d 170, 175 (10th Cir. 1992).
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him the actual, implied, or apparent authority to compromise his client’s case’”). The Court
must, however, consider “this general principle . . . in connection with the rule that an
attorney of record is presumed to have authority to compromise and settle litigation of his
client, and a judgment entered upon an agreement by the attorney of record will be set aside
only upon affirmative proof by the party seeking to vacate the judgment that the attorney
had no right to consent to its entry.” Thomas, 366 F.2d at 139 (citations omitted) (Rule
60(b) motion “must be clearly substantiated by adequate proof”).
Plaintiff has submitted a Declaration, wherein he has sworn under penalty of
perjury, see Declaration (Doc. No. 50) at 3,8 that counsel, “without notifying Plaintiff, . . .
apparently agreed to a Joint Stipulation of Dismissal Without Prejudice.” Pl.’s Mot. to
Vacate (Doc. No. 50) at 2. In the absence of a contrary response or an objection from

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Where
any matter is required . . . to be supported, evidenced, established, or proved
by the sworn declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same . . . , such matter may,
with like force and effect, be supported, evidenced, established, or proved by
the unsworn declaration, certificate, verification, or statement, in writing of
such person which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
....
(2) If executed within the United States, . . . : “I declare (or certify, verify,
or state) under penalty of perjury that the foregoing is true and correct.
Executed on (date).
(Signature)”.

28 U.S.C. § 1746. Plaintiff’s Declaration complies with this statute. See Declaration (Doc.
No. 50) at 3.
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Plaintiff's counsel, the Court assumes for the sake of argument that Plaintiff has presented
adequate proof that his attorney was not authorized to stipulate to the dismissal without
prejudice of Plaintiff’s only remaining claim.
Even doing so, the Court finds Plaintiff is not entitled to relief. Should the Court
disregard the parties' Joint Stipulation of Dismissal Without Prejudice and reopen this case,
such actions would be futile since Plaintiff’s state law trespass claim against the City fails
as a matter of law9 and the litigation would again terminate.
In his First Amended Complaint, Plaintiff alleged the City
entered Plaintiff’s property without permission and legal justification when .
. . Officer Coffey acting within the course and scope of employment entered
the real property of Plaintiff allegedly at the request of Midwest City. While
on the property, . . . Coffey observed the [stolen] generator through a crack
in the door.
First Am. Compl. (Doc. No. 20) ¶ 32. See id. ¶ 8 (“[a]fter . . . contact by Defendant Glover,
Defendant . . . City through . . . City Police Officer Coffey traveled to Plaintiff’s property,
and then trespassed on Plaintiff’s property by allegedly looking through a crack in a door
to observe the generator”). See also Def. Conley’s Mot. to Dismiss Ex. 2 (Doc. No. 9-2)
at 1 (Affidavit of Probable Cause) (“Sgt. Glover contacted OCPD and Officer Coffey was
dispatched to 215 N Douglas Ave. Officer Coffey informed Sgt. Glover that he could see

Moreover, even if the parties had not agreed to dismiss Plaintiff’s state law claim of
trespass, the Court had grounds to dismiss that claim sua sponte since no federal law claims
remained against any Defendant. See Bauchman v. West High Sch., 132 F.3d 542, 549
(10th Cir. 1997) (if federal claims are dismissed before trial, leaving only issues of state
law, court should decline to exercise supplemental jurisdiction by dismissing case without
prejudice).
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a generator matching the description of the one reported stolen through a crack in the
door.”).
In its Order of November 29, 2017, the Court addressed the issue of trespass and
noted that “Oklahoma courts ‘have considered police officers trespassers only where they
have entered property without proper legal authority to do so.’” Order of Nov. 29, 2017
(Doc. No. 42) at 11 (quoting Lawmaster v. Ward, 125 F.3d 1341, 1352 (10th Cir. 1997)
(citations omitted)). The City’s liability in Count III as framed in the First Amended
Complaint is grounded on Officer Coffey’s actions,10 see First Am. Compl. (Doc. No. 20)
at 8, and the Court found in its Order of November 29, 2017, that Officer Coffey, while
acting within the scope of his employment as a municipal police officer, had “entered
[Plaintiff’s] property with the ‘legal authority to do so.’” Id. (quoting Lawmaster, 125 F.3d
at 1352 (citations omitted)). Because the Court has determined that Officer Coffey’s
conduct was not actionable because he entered Plaintiff’s property in the performance of
his duty and was authorized to do so, the City, as Officer Coffey’s employer, cannot be
held liable under state law for trespass. The Court therefore finds no reason to disregard
or set aside the Joint Stipulation of Dismissal Without Prejudice filed on December 14,
2017, by Plaintiff “‘by and thr[ough] his attorney of record[,] and the City,’” Order of Apr.

Subject to certain exemptions, a political subdivision, such as the City, may be held
“liable for loss resulting from . . . the torts of its employees acting within the scope of their
employment.” Okla. Stat. tit. 51, § 153(A). The phrase “‘[s]cope of employment’ means
performance by an employee acting in good faith within the duties of the employee’s office
or employment or of tasks lawfully assigned by a competent authority.’” Id. §152(12).
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30, 2018 (Doc. No. 48) at 1 (quoting Joint Stip. of Dismissal Without Prejudice (Doc. No.
46) at 1), or to direct the Clerk of the Court to reopen the matter in her records.
Accordingly, the Court
(1) DENIES Plaintiff’s Motion to Terminate Counsel (Doc. No. 49);
(2) DENIES Plaintiff’s Motion to Vacate Judgment (Doc. No. 50); and
(3) DIRECTS the Clerk of the Court to send a copy of this Order by electronic
transmission to all counsel of record and to mail a copy of the same to Plaintiff at the
following address: P.O. Box 2962, Oklahoma City, OK 73101.
IT IS SO ORDERED this 22nd day of January, 2019.

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