McCray v. Technicolor Video Cassette Of Michigan, Inc.
Filing
29
ORDER denying 27 Motion for Reconsideration. Signed by Chief Judge Jon Phipps McCalla on 03/29/2013. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_____________________
______________________________________
WENDELL McCRAY,
)
)
Plaintiff,
)
)
)
v.
)
2:12-cv-02088-JPM-cgc
)
TECHNICOLOR VIDEO CASSETTE
)
OF MICHIGAN, INC.,
)
)
Defendant.
)
______________
_____________________________________________
ORDER DENYING MOTION FOR RECONSIDERATION
____________________________________________________
_______
Before the Court is Plaintiff’s Motion for Reconsideration
of Court’s Order to Dismiss, filed March 22, 2013.
No. 27.)
(ECF
Defendant responded in opposition on March 25, 2013.
(ECF No. 28.)
For the following reasons, Plaintiff’s Motion for
Reconsideration is DENIED.
I. BACKGROUND
On May 23, 2012, the Court entered a Scheduling Order
setting the initial-disclosures deadline on June 6, 2012, and
the discovery-completion deadline on January 23, 2013.
No. 10.)
(ECF
On January 8, 2013, Defendant filed a Motion to
Compel, stating that Plaintiff had not served his initial
disclosures, had not responded to Defendant’s first
interrogatories, and had not responded to Defendant’s first
request for production of documents.
(ECF No. 14.)
On January
22, 2013, Defendant filed a Motion to Extend Deadlines and to
Re-set Trial Date (ECF No. 17) based on Plaintiff’s failure to
comply with Defendant’s discovery requests.
The Court granted
the Motion, resetting the discovery-completion deadline to March
25, 2013.
(ECF No. 18.)
Plaintiff did not respond to
Defendant’s Motion to Compel.
On January 29, 2013, the Court
granted Defendant’s Motion to Compel, ordering Plaintiff to
serve its initial disclosures and to “fully respond” to
Defendant’s first discovery request and first interrogatories
within fourteen days of the entry of the Order.
(ECF No. 20.)
The Order stated “that failure to comply with this order may
result in . . . [the] dismissal of this action.”
(Id. at 2.)
On March 5, 2013, Defendant filed a Motion to Dismiss
stating that Plaintiff had not “fully responded” to Defendant’s
discovery requests.
(ECF No. 22 at 2.)
On March 7, 2013, the
Court ordered Plaintiff to show cause within ten days of the
entry of the Order why Plaintiff’s case should not be dismissed
with prejudice pursuant to Federal Rule of Civil Procedure 41(b)
for failure to comply with the Court’s Order of January 29,
2013.
(ECF No. 24.)
Plaintiff did not respond to the Order to
Show Cause within the allotted time.
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On March 19, 2013, the
Court dismissed Plaintiff’s case with prejudice and entered a
Judgment.
(ECF No. 25; ECF No. 26.)
On March 22, 2013, Plaintiff filed a Motion for
Reconsideration of Court’s Order to Dismiss pursuant to Federal
Rules of Civil Procedure 59(e) and 60(b).
(ECF No. 27.)
II. STANDARD
A party who files a Rule 59(e) motion to alter or amend a
judgment must file the motion within twenty-eight days after the
entry of the judgment, Fed. R. Civ. P. 59(e), and must set forth
with particularity, the grounds for the motion, Intera Corp. v.
Henderson, 428 F.3d 605, 611 (6th Cir. 2005) (citing Fed. R.
Civ. P. 7(b)).
Motions to alter or amend a judgment may be
granted if there is “(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling
law; or (4) a need to prevent manifest injustice.”
Leisure
Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615
(6th Cir. 2010) (quoting Intera Corp., 428 F.3d at 620)
(internal quotation marks omitted).
The movant “should not use
[a Rule 59(e) motion] to raise arguments which could, and
should, have been made before judgment issued.”
Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
(6th Cir. 1998).
A party who files a Rule 60(b) motion for relief from a
final judgment, order, or proceeding “must establish that the
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facts of its case are within one of the enumerated reasons
contained in Rule 60(b) that warrant relief.”
Lommen v.
McIntyre, 125 F. App’x 655, 659 (6th Cir. 2005) (quoting Lewis
v. Alexander, 987 F. 2d 392, 396 (6th Cir. 1993)) (internal
quotation marks omitted).
The following grounds are those that
warrant relief from a final judgment under Rule 60(b):
(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.
Fed. R. Civ. P. 60(b)(1)-(6).
“[T]he party seeking relief under
Rule 60(b) bears the burden of establishing the grounds for such
relief by clear and convincing evidence.”
Info-Hold, Inc. v.
Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008).
III. ANALYSIS
Plaintiff argues that relief from the Order of Dismissal
and Judgment in this case should be granted for the following
reasons:
Plaintiff believed that the deadline for all discovery
responses was March 25, 2013; Plaintiff’s counsel has taken
several unplanned leaves of absence for medical reasons; counsel
is in the process of dissolving her case load as she will no
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longer maintain a practice for at least the remainder of 2013;
counsel will be relocating during this leave of absence.
No. 27 at 2.)
(ECF
Plaintiff asserts that these constitute
“extraordinary circumstances,” and that reconsideration of the
dismissal of Plaintiff’s case will prevent manifest injustice to
her client.
(Id.)
Plaintiff has not clearly stated with particularity the
grounds she seeks to assert for relief from the final judgment.
(See id. at 1-3.)
The Court, however, construes Plaintiff’s
Motion as raising prevention of manifest injustice under Rule
59(e), and excusable neglect under Rule 60(b)(1) as grounds for
relief.
The Court will address these grounds in turn.
A. Manifest Injustice
Plaintiff argues that the Court should allow Plaintiff “the
opportunity to secure further representation and the opportunity
to fully supplement any and all responses . . . in consideration
and as [] to prevent manifest injustice toward Plaintiff’s
interest.”
(See id. at 2.)
This argument fails for two reasons.
First, Plaintiff is
raising an argument which should have been raised before
Judgment was issued by this Court.
See Engler, 146 F.3d at 374.
Plaintiff was ordered by this Court to show cause why Plaintiff
had not complied with the Court’s Order of January 29, 2013.
(ECF No. 20.)
At that point, Plaintiff was aware that counsel
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was dealing with medical concerns and should have alerted the
Court to these issues within the allotted time for response to
the Order to Show Cause.
Instead, these concerns were not
raised until the filing of Plaintiff’s Motion for
Reconsideration.
As a result, Plaintiff cannot now raise these
circumstances as grounds for reconsideration of the Court’s
dismissal of Plaintiff’s case.
Second, Plaintiff has not stated with particularity in what
way the circumstances addressed in the Motion, i.e., counsel’s
medical issues, will result in “manifest injustice” to the
Plaintiff.
It appears that counsel’s medical issues have been
ongoing and have resulted in counsel failing to perform on
behalf of her client for a significant period of time.
Why
these circumstances now will create manifest injustice to the
Plaintiff is unclear from Plaintiff’s Motion.
The Court finds that Plaintiff has not sufficiently stated
a ground under Federal Rule of Civil Procedure 59(e) for
reconsideration of the Court’s dismissal of this case.
B. Excusable Neglect
Plaintiff argues that the Court should reconsider its
Judgment in this case because Plaintiff believed all discovery
to be due on March 25, 2013, and because Plaintiff’s counsel has
been dealing with ongoing medical issues.
(ECF No. 27 at 2.)
Courts have “defined neglect to include late filings caused by
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mistake, inadvertence, or carelessness, as well as intervening
circumstances beyond the party’s control.”
Burnley v. Bosch
Ams. Corp., 75 F. App’x 329, 333 (6th Cir. 2003) (citation
omitted) (internal quotation marks omitted).
Mere “ignorance of
the law on the part of the moving party,” however, will not
justify relief pursuant to Federal Rule of Civil Procedure
60(b)(1).
Merriweather v. Wilkinson, 83 F. App’x 62, 63 (6th
Cir. 2003) (citing FHC Equities, LLC v. MBL Life Assurance
Corp., 188 F.3d 678 685-87 (6th Cir. 1999)).
Plaintiff cannot establish excusable neglect in this case
for three reasons.
First, Plaintiff’s ignorance regarding
discovery procedure does not constitute a basis for
reconsideration of the dismissal of the case.
See Merriweather,
83 F. App’x at 63.
Second, Plaintiff’s mistaken belief that the deadline for
all discovery responses was March 25, 2013, does not explain or
excuse Plaintiff’s failure to respond within the allotted time
to this Court’s Order to Show Cause entered March 7, 2013.
The
Order clearly stated that Plaintiff was “ORDERED TO SHOW CAUSE
within ten (10) days of the entry of [the] Order why Plaintiff’s
case should not be dismissed with prejudice . . . for failure to
comply with a court order.”
(ECF No. 24.)
Plaintiff’s failure
to observe a clear deadline set forth in the Court’s Order to
Show Cause does not constitute a basis for reconsideration of
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the dismissal of this case.
See Rodriguez v. Astrue, No. 3:11-
cv-398, 2012 WL 3138704, at *3 (N.D. Ohio Aug. 1, 2012).
Third, Plaintiff has not demonstrated that his counsel’s
medical issues are grounds for reconsideration of the Court’s
dismissal of this case.
As stated above, “the party seeking
relief under Rule 60(b) bears the burden of establishing the
grounds for such relief by clear and convincing evidence.”
Info-Hold, Inc., 538 F.3d at 454.
In this case, Plaintiff
appears to assert that counsel’s medical issues constitute
“intervening circumstances beyond the party’s control” resulting
in the failure of counsel to respond to this Court’s orders.
See Burnley, 75 F. App’x at 333.
However, Plaintiff’s Motion
for Reconsideration does not articulate how or why counsel’s
illness caused Plaintiff’s failure to serve initial disclosures,
to respond to Defendant’s first interrogatories and first
discovery request, to comply with the Court’s Order of January
29, 2013, or to show cause in response to the Court’s March 7,
2013, Order.
(See ECF No. 27.)
Plaintiff’s Motion contains
only the bare assertion that counsel has been dealing with
medical issues that have resulted in periodic absences.
This
bare assertion does not constitute the “clear and convincing
evidence” necessary for establishing excusable neglect on the
part of Plaintiff.
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The Court finds that Plaintiff has not sufficiently stated
a ground under Federal Rule of Civil Procedure 60(b)(1) for
reconsideration of the Court’s dismissal of this case.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for
Reconsideration is DENIED.
SO ORDERED this 29th day of March, 2013.
s/Jon P. McCalla
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE
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