Irmo, Town of et al v. McQuatters
Filing
136
OPINION and ORDER denying 121 Motion for Relief from Judgment; denying 128 Motion for Relief from Judgment; denying 132 Motion for Leave to Appeal in forma pauperis; denying Defendant Keesley's request for sanctions under Rule 11 without prejudice. Signed by Honorable Cameron McGowan Currie on 1/3/2012.(cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Joseph T. McQuatters,
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Plaintiff,1
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v.
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Town of Irmo Corporation; S. Jahue Moore, )
an individual; Kathleen Loveless,
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an individual; Joseph M. Epting,
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an individual; Brian Buck, an individual;
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J. Hendricks, an individual;
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William P. Keesley, an individual;
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Beth A. Carrigg, an individual;
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Lisa Comer, an individual,
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Defendants.
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___________________________________ )
C/A NO. 3:10-1375-CMC-PJG
OPINION and ORDER
This matter is before the court on Plaintiff’s pro se “Petition in the Nature of Motion for
Relief from Judgment [FRCP 60(b)(1)(3)(4)].” ECF No. 121 (filed Aug. 23, 2011). Defendant
Keesley has responded in opposition to Plaintiff’s motion, seeking dismissal of the motion and
sanctions against Plaintiff under Rule 11 of the Federal Rules of Civil Procedure. Plaintiff has also
filed an “Amended Petition in the Nature of a Motion for Relief from Judgment [FRCP Rule
60(1)(3)(4),” ECF No. 128 (filed Sept. 27, 2011), and a “Notice of Fault Opportunity to Cure –
Intent to Appeal,” ECF No. 130 (filed Nov. 29, 2011). On December 21, 2011, Plaintiff filed a
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Plaintiff has made repeated filings indicating that the court has committed fraud or “fraud
in the inducement” by altering the caption of this matter and properly aligning the parties.
Furthermore, Plaintiff contends that the name “Joseph T. McQuatters” is a “fictitious entity for
which [Plaintiff] is the authorized representative,” Amd. Compl. at 6 (Dkt. #43, filed Aug. 31, 2010),
or that “Joseph T. McQuatters exists only as a trust, a fiction of law [ ] not capable of filing an action
of any kind . . . .” Return at 4 (Dkt. #92, filed Dec. 20, 2010). The court has previously rejected
these assertions as frivolous.
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Notice of Appeal to the Fourth Circuit, together with a motion to proceed in forma pauperis (ifp)
on appeal. ECF Nos. 131 & 132.
Rule 60(b)(1)
Rule 60(b)(1) provides for relief from a judgment based on mistake, surprise, inadvertence,
or excusable neglect. The extraordinary remedy of Rule 60(b) is only to be granted in exceptional
circumstances. See Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th Cir.1979). To obtain relief
under the Rule based on excusable neglect, the movant “must demonstrate inter alia that [he] was
not at fault and that the nonmoving party will not be prejudiced by the relief from judgment.” Home
Port Rentals, Inc. v. Ruben, 957 F.2d 126, 132 (4th Cir.1992).
In limited circumstances, the word “mistake” in Rule 60(b) has been read to include mistakes
by the court. See, e.g., Tarkington v. United States Lines Co., 222 F.2d 358 (2d Cir.1955) (a
Supreme Court decision handed down eleven days after the district court entered judgment indicated
that the district court erred; Rule 60(b) was held to authorize a motion bringing the Supreme Court
decision to the district court’s attention and moving the district court to alter its judgment
accordingly). Where the motion does nothing more than request that the district court change its
mind, it is not authorized by Rule 60(b). United States v. Williams, 674 F.2d 310, 313 (4th
Cir.1982).
Plaintiff offers no authority or persuasive argument in support of relief under Rule 60(b)(1).
Plaintiff contends that this court erred in “ignor[ing]” certain precedent relating to actions by pro
se individuals. Mot. at 2 (ECF No. 121). However, Plaintiff’s contentions are without merit.
Initially, the court notes that the record of this matter is replete with Plaintiff’s repetitive assertions
regarding his stated issues in this matter. The court is not, contrary to Plaintiff’s belief, required to
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hold an evidentiary hearing, particularly when it is not warranted. Additionally, Plaintiff complains
that this court commits error if it dismisses this matter without instructions on how his pleadings are
deficient and how to repair them. However, while the court is charged with liberally construing pro
se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), it does not act as the plaintiff’s
advocate, sua sponte developing statutory and constitutional claims the plaintiff failed to clearly
raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.1997) (Luttig,
J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985).2 Plaintiff also
contends that “litigants[’] constitutional rights are violated where courts depart from precedent
where parties are similarly situated.” Mot. at 2. This assertion is correct, yet Plaintiff makes no
showing how this court has “depart[ed] from precedent where parties are similarly situated.”
Therefore, Plaintiff’s motion fails under Rule 60(b)(1).
Rule 60(b)(3)
Federal Rule of Civil Procedure 60(b)(3) gives district courts the power to relieve a party
from an adverse judgment because of “fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party.” Fed.R.Civ.P. 60(b)(3) (emphasis
added). In Schultz v. Butcher, the Fourth Circuit held that a moving party must establish three
factors in order to state a successful Rule 60(b)(3) motion: “(1) the moving party must have a
meritorious [claim]; (2) the moving party must prove misconduct by clear and convincing evidence;
and (3) the misconduct prevented the moving party from fully presenting its case.” 24 F.3d 626, 630
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Plaintiff also cites a case – noted as Anastassof v. U.S. – which the court cannot locate at
the citation provided (233 F.3d 898). The case located at this citation is A-Mark Auction Galleries,
Inc. v. American Numismatic Ass’n, 233 F.3d 895 (5th Cir. 2000), and is inapposite to the matter at
hand.
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(4th Cir.1994) (citing Square Constr. Co. v. Washington Metro. Area Transit Auth., 657 F.2d 68,
71 (4th Cir.1981)).
Even where a moving party satisfies the Schultz three prong test, a district court must
“balance the competing policies favoring the finality of judgments and justice being done in view
of all the facts, to determine within its discretion, whether relief is appropriate in each case.” Id.
Furthermore, “Rule 60(b) does not authorize a motion merely for reconsideration of a legal issue.”
Williams, supra, 674 F.2d at 312-13 (“Where the motion is nothing more than a request that the
district court change its mind, however, it is not authorized by Rule 60(b).”). In considering a
motion under Rule 60(b)(3), a district court retains the discretion to discern whether a moving
party’s allegations of unfair judgment are more properly classified as requests that the district court
merely “change its mind.” Essentially, Rule 60(b)(3) provides an avenue for revisiting judgments
that were obtained unfairly, not judgments which the moving party merely believes were erroneous.
Schultz, 24 F.3d at 630.
Plaintiff makes no showing of misconduct by Defendants. Therefore, his motion for relief
under Rule 60(b)(3) is denied.
Rule 60(b)(4)
Rule 60(b)(4) allows a district court to vacate an otherwise final order only if “the judgment
is void.” Fed.R.Civ.P. 60(b)(4). An order is void for purposes of Rule 60(b)(4) only if the court
rendering the decision lacked subject matter jurisdiction. United States v. Hartwell, 448 F.3d 707,
722 (4th Cir. 2006). The Fourth Circuit Court of Appeals narrowly construes Rule 60(b)(4)
precisely because of the threat to finality of judgments; “only when the jurisdictional error is
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egregious will the courts treat the judgment as void.” Id. The plaintiff has neither stated nor shown
any egregious jurisdictional error. Therefore, his motion for relief under Rule 60(b)(4) is denied
Defendant’s Request for Sanctions under Rule 11
The court notes that in Defendant Keesley’s Response to Plaintiff’s Rule 60 motion, he seeks
sanctions pursuant to Rule 11 of the Federal Rule of Civil Procedure. Rule 11 specifically provides
that “[a] motion for sanctions must be made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). Defendant’s request
does not comply with this requirement and it is therefore denied without prejudice to Defendant
Keesley’s right to file a proper Rule 11 motion for sanctions.
Motion to Proceed in forma pauperis on Appeal
Federal Rule of Appellate Procedure 24 (a)(1) requires a party who desires to appeal in forma
pauperis to attach an affidavit to his motion that: (A) shows . . . the party’s inability to pay or give
security for fees and costs; and (B) claims an entitlement to redress; and (C) states the issues that
the party intends to present on appeal.” “An appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).
Plaintiff has not provided this court with the information required by Federal Appellate Rule
of Procedure 24(a)(1)(C) which would allow this court to assess whether or not Plaintiff’s appeal
is taken in good faith. “‘Good faith’ within the meaning of § 1915 means the presentation of issues
for appeal which, judged by an objective standard, are not frivolous.” Harlem River Consumers
Co-op., Inc. v. Associated Grocers of Harlem, Inc., 71 F.R.D. 93, 97 (S.D.N.Y.1976).
Plaintiff’s motion is, therefore, denied. Plaintiff’s attention is directed to Federal Rule of
Appellate Procedure 24(a)(5).
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Conclusion
Plaintiff’s motion for relief under Rule 60 is denied. Defendant Keesley’s request for
sanctions under Rule 11 is denied without prejudice. Plaintiff’s motion to proceed in forma
pauperis on appeal is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
January 3, 2012
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