Davis v. Lott et al

Filing 44

ORDER denying Plaintiff's 42 Motion to Vacate Void Judgment and Motion to Set Aside Default Judgment. Signed by Honorable J. Michelle Childs on 2/20/2019. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Keith Allen Davis,

)
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Plaintiff,
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)
v.
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)
Leon Lott, Sheriff; Dan Johnson, Solicitor )
of Richland County-Fifth Judicial Circuit; )
Dayle Blackmon, Head of Asset Forfeiture, )
Sheriff Deputy; Richland County Sheriff’s )
Office,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 3:14-cv-04676-JMC
ORDER

This matter is before the court for review of Plaintiff Keith Allen Davis’ (“Plaintiff”)
Motion to Vacate Void Judgment and Motion to Set Aside Default Judgment. (ECF No. 42.)
Plaintiff, proceeding pro se and in forma pauperis, filed his Motions on June 27, 2018. 1 (ECF No.
42-2 at 2.) Plaintiff’s Motions seek to void a judgment from the court that was entered, pursuant
to the court’s Order and Opinion, on August 31, 2016, and he moves pursuant to Federal Rule of
Civil Procedure 12(b)(4). (ECF Nos. 42, 30.) This is Plaintiff’s second Motion to Vacate involving
the court’s Order and Opinion from August 31, 2016. (See ECF Nos. 32, 42.) Plaintiff’s first
Motion to Vacate, which sought to vacate the court’s Order and Opinion from August 31, 2016,
was filed in January 2017 and denied by the court on June 28, 2017. (ECF Nos. 32, 34.)

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Under the prison mailbox rule, “a pro se litigant’s legal papers are considered filed upon ‘delivery
to prison authorities, not receipt by the clerk.’” United States v. McNeill, 523 F. App’x 979, 981
(4th Cir. 2013) (quoting Houston v. Lack, 487 U.S. 266, 275 (1988)). In the instant case, Plaintiff
delivered his Motion to Vacate Void Judgment and Motion to Set Aside Default Judgment to
prison authorities on June 27, 2018. (ECF No. 42-2.) Therefore, pursuant to Houston and for
purposes of the prison mailbox rule, Plaintiff’s Motions were filed on June 27, 2018. 487 U.S. at
275.
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Under Rule 60(c) of the Federal Rules of Civil Procedure, “[a] motion under Rule 60(b)
must be made within a reasonable time . . . after the entry of the judgment or order or the date of
the proceeding.” FED. R. CIV. P. 60(c). The movant bears the burden of showing timeliness. See
Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016) (citing Werner v. Carbo, 731 F.2d 204, 206–
07 & n.1 (4th Cir. 1984)). Whether a movant has timely filed a Rule 60(b) motion is “[b]ased on
the circumstances” of the case. See Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859
F.3d 295, 300 (4th Cir. 2017) (holding that a moving party untimely filed a Rule 60(b) motion
when they “waited more than two years” to file a Rule 60(b) motion and did not face “hurdles to
surmount” in filing the motion). See also Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899, 906
(6th Cir. 2006) (“What constitutes a reasonable time depends on the facts of each case.” (citation
omitted)).
The court issued its Order and Opinion, which dismissed Plaintiff’s Complaint (ECF No.
1), on August 31, 2016. (ECF No. 29.) The court issued its judgment on that same day. (ECF No.
30.) The court denied Plaintiff’s first Motion to Vacate, concerning the court’s Order and Opinion,
on June 28, 2017. (ECF No. 34.) Plaintiff’s second Motion to Vacate, regarding the court’s
judgment, was filed on June 27, 2018. (ECF No. 42.) The instant Motion to Vacate is untimely
because it involves a judgment that was entered almost two years before its filing. (Compare ECF
No. 30, with ECF No. 42-2.) Moreover, Plaintiff’s current Motion to Vacate does not identify any
hurdles that caused him to file his Motion almost two years later. (See ECF No. 42.) Plaintiff fails
to provide any explanation for his untimeliness. (See id.) Indeed, the United States Court of
Appeals for the Fourth Circuit has routinely held that such moves by Plaintiff are not within a
“reasonable time.” See Danielson v. Human, 676 F. App’x 198, 199 (4th Cir. 2017) (holding that
a district court did not abuse its discretion for finding a Rule 60(b) motion as untimely when it was

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filed “more than [two] years after entry of judgment”); Wadley v. Equifax Info. Servs., LLC, 296
F. App’x 366, 368 (4th Cir. 2008) (holding that a party did not file his Rule 60(b) motion within a
reasonable time when he waited “almost two years”); McLawhorn v. John W. Daniel & Co., Inc.,
924 F.2d 535, 538 (4th Cir. 1991) (holding that a Rule 60(b) motion is not timely when it was
made “three to four months after the original judgment and no valid reason [was] given for the
delay” (citations omitted)). Therefore, Plaintiff has failed to show that his current Motion to Vacate
is timely, and his Motion has not been made within a “reasonable time.” Wells Fargo Bank, N.A.,
59 F.3d 295 at 300. Additionally, Plaintiff’s Motion to Vacate attempts to re-argue the merits of
his case, which this court adequately addressed in its prior Order denying his first Motion to
Vacate. (Compare ECF No. 42, with ECF No. 32, and ECF No. 34.) For these reasons, the court
DENIES Plaintiff’s Motion to Vacate Void Judgment and Motion to Set Aside Default Judgment
(ECF No. 42).
IT IS SO ORDERED.

United States District Judge

February 20, 2019
Columbia, South Carolina

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