Laucks v. McVay et al

Filing 19

ORDER denying 7 Motion to Reopen Case; finding as moot 10 Motion Waive Filing of State Court Record; finding as moot 10 Motion to Consolidate Cases; finding as moot 11 Motion to Transfer Case; finding as moot 18 Sealed Motion. So Ordered by Chief Judge William E. Smith on 2/22/16. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
MARK MCVAY; JOHN DEACON, JR.,
)
ESQ.; W. MARK RUSSO, AS INDIVIDUAL )
AND IN HIS CAPACITY AS RHODE
)
ISLAND SUPERIOR COURT SPECIAL
)
MASTER; JOHN A. DORSEY, AS
)
INDIVIDUAL AND IN HIS CAPACITY
)
AS RHODE ISLAND SUPERIOR COURT
)
SPECIAL MASTER; SETH SCHALOW;
)
MICHAEL A. SILVERSTEIN AS
)
INDIVIDUAL AND IN HIS CAPACITY AS )
RHODE ISLAND SUPERIOR COURT JUDGE; )
AND BENJAMIN CUTCHSHAW, ESQ.,
)
)
Defendants.
)
___________________________________)
MELINDA LAUCKS,

C.A. No. 15-053 S

ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Plaintiff’s Motion to Reopen.
7.)

(ECF No.

Defendants W. Mark Russo, John A. Dorsey, and Seth Schalow

filed an Opposition (ECF No. 9), as did Defendant Michael A.
Silverstein (ECF No. 12).
13.)

Plaintiff filed a Reply.

(ECF No.

For the reasons that follow, Plaintiff’s Motion to Reopen

is DENIED.
This case was filed on February 17, 2015.

(ECF No. 1.)

Defendants Dorsey and Russo moved to dismiss for lack of subject

matter jurisdiction on March 2, 2015.

(ECF No. 3.)

Several

weeks later, Plaintiff moved to withdraw her Complaint, stating
that “[d]ue to catastrophic fire, Plaintiff, Melinda Laucks will
be unable to present evidence to support the Complaint.”
No. 4.)

In January 2016, Plaintiff moved to reopen.

(ECF

(ECF No.

7.)
Although Plaintiff does not cite it, the Court considers
her motion under Federal Rule of Civil Procedure 60(b), which
provides that:
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 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.
Plaintiff does not identify any of these reasons in her opening
brief; however, in her reply she states that her Complaint was
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“abandoned

prematurely

due

events

beyond

my

control,

catastrophic fire and the total destruction of my home and all
my

belongings,

constituting

by

and

subsequent

and

ongoing

any

reasonable

court,

homelessness,

excusable

neglect.”

(Pl.’s Reply 2, ECF No. 13 (emphasis added).)
The

Court

does

not

agree

constitutes excusable neglect.

that

a

voluntary

dismissal

See Edwards-Brown v. Crete-Monee

201-U Sch. Dist., 491 F. App’x 744, 747 (7th Cir. 2012) (“[I]t’s
hard to see how relief under Rule 60(b) would ever be available
for a plaintiff like Brown who has made a conscious, deliberate
decision to dismiss a lawsuit.
be

allowed

‘excusable

to

rescind

neglect,’

category.

but

Excusable

unintentional

her

omissions,

her

Brown suggests that she should
voluntary
conduct

neglect
such

as

dismissal
does

under

not

Rule

missed

because

fall

60(b)(1)

filing

in

of
this

covers

deadlines;

it

does not apply to a plaintiff’s deliberate actions.”); Chang v.
Smith, 778 F.2d 83, 86 (1st Cir. 1985) (“The principle is well
established that Rule 60(b) does not provide relief from ‘free,
calculated

[and]

deliberate

choices.’

.

.

.

[I]gnorance

or

mistake of law is not a ‘mistake’ for purposes of Rule 60(b)(1)
. . . . Nor is it ‘excusable neglect’.” (quoting Ackerman v.
United States, 340 U.S. 193, 198 (1950))).

Plaintiff made the

decision to voluntarily withdraw her Complaint; “a change of
heart . . . [is] not covered by [Rule 60(b)].”
3

Triplett v.

Colvin, No. 12 C 4382, 2014 WL 4978658, at *1 (N.D. Ill. Oct. 6,
2014).
For the foregoing reasons, Plaintiff’s Motion to Reopen is
hereby DENIED.

Because the case remains closed, Plaintiff’s

subsequent motions (ECF Nos. 10, 11, and 18) are hereby DENIED
AS MOOT.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: February 22, 2016

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