Kincaid v. NSK Steering System Inc.

Filing 23

ORDER ADOPTING DE 22 REPORT AND RECOMMENDATIONS and Denying Plaintiff's Motion for Reconsideration, DE 19 , signed by Judge John T. Fowlkes, Jr. on 4/18/17. (Fowlkes, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
)
ANGELA KINCAID,
)
)
Plaintiff,
)
)
v.
)
Case No. 2:16-cv-02085-JTF-dkv
)
NSK STEERING SYSTEM, INC.,
)
)
Defendant.
)
)

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION

Before the Court is Plaintiff’s pro se Motion for Reconsideration that was filed on May
16, 2016. (ECF No. 19). Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the motion was referred
to the Magistrate Judge. On June 2, 2016, the Defendant filed a Response in Opposition to the
Motion for Relief from Judgment. (ECF No. 21). On March 28, 2017, the Magistrate Judge
issued a Report and Recommendation. (ECF No. 22). Timely Objections have not been filed
pursuant to 28 U.S.C. § 636 (c) or LR 72.1(g). After a de novo review, the Court adopts the
Magistrate Judge’s report and recommendation and Plaintiff’s Motion for Reconsideration is
Denied.
I. FINDINGS OF FACT
The Court adopts the Magistrate Judge’s proposed findings of facts as summarized in the
instant Report and Recommendation. (ECF No. 22).

II. LEGAL STANDARD
Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts by
permitting the assignment of certain district court duties to magistrates.” See e.g. Baker v.
Peterson, 67 Fed. App’x. 308, 311, 2003 WL 21321184 (6th Cir. 2003) and Fed. R. Civ. P.
72(a).

These referrals may include non-dispositive pretrial matters, such as a motion to compel

or a motion for a protective order concerning discovery. 28 U.S.C. § 636(b)(1)(A). The district
court has appellate jurisdiction over any decisions the magistrate judge issues pursuant to such a
referral. Fed. R. Civ. P. 72. The referrals may also include dispositive matters such as a motion
for summary judgment or a motion for injunctive relief. 28 U.S.C. § 636(b)(1)(B). When a
dispositive matter is referred, the magistrate judge’s duty is to issue proposed findings of fact and
recommendations for disposition, which the district court may adopt or not. “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
The standard of review that is applied by the district court depends on the nature of the
matter considered by the magistrate judge. If the magistrate judge issues a non-dispositive
pretrial order, the district court should defer to that order unless it is “found to be clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). However, if the
magistrate judge’s order was issued in response to a dispositive motion, the district court should
engage in de novo review of all portions of the order to which specific written objections have
been made. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Baker v. Peterson, 67 Fed. App’x.
308, 310, 2003 WL 21321184 *2 (6th Cir. 2003) (“A district court normally applies a ‘clearly
erroneous or contrary to law’ standard of review for non[-]dispositive preliminary measures. A
district court must review dispositive motions under the de novo standard.”).

2

Standard for Rule 60(b) Relief
Fed. R. Civ. P. 60 (b) sets forth the criteria for determining whether relief from a federal
court's judgment or order is warranted. It provides:
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.
Fed. R. Civ. P. 60(b). “[R]elief under Rule 60(b) is circumscribed by public policy favoring
finality of judgments and termination of litigation.” Info-Hold, Inc. v. Sound Merchandising,
Inc., 538 F.3d 448, 454 (6th Cir. 2008), quoting Blue Diamond Coal Co. v. Trs. of UMWA
Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001) (internal quotation marks omitted).
Accordingly, the party seeking relief under Rule 60(b) bears the burden of establishing the
grounds for such relief by clear and convincing evidence. See McCurry ex rel. Turner v.
Adventist Health System/Sunbelt, Inc., 298 F.3d 586, 592 (6th Cir. 2002).
III. ANALYSIS
Plaintiff requests that the Court reconsider dismissal of this action because of her
attorney’s failure to timely file her case. In support of her position, Plaintiff submitted copies of
her July 2015 Attorney-Client Agreement and copies of her receipt for payment. (ECF Nos. 19
& 19-1, pp. 1-11). Defendant responds that Plaintiff is not entitled to Rule 60(b) relief because

3

neither Plaintiff’s neglect nor the alleged neglect of her counsel is excusable. The Defendant
also asserts that Plaintiff does not qualify for equitable tolling in this case. (ECF No. 21, p. 6).
The Court previously ordered the case dismissed because Plaintiff filed her complaint with
the Court 229 days after receiving her Right to Sue Notice from the EEOC, instead of within the
ninety (90) days allowed. (ECF Nos. 12 and 19). The Magistrate Judge determined that Plaintiff
has not demonstrated an entitlement to Rule 60(b)(1) relief for excusable neglect based on a lack
of culpability. She correctly determined that the terms of the Attorney-Client Agreement clearly
provided that due to work constraints, counsel would only draft the Title VII complaint and that
Plaintiff would in turn, subsequently file the matter, pay the filing fees, and proceed pro se.
(ECF Nos. 22, pp. 3-5 and 19-1). Moreover, Plaintiff was also notified that she had 90 days in
which to file her complaint in the undersigned court, eliminating relief under Rule 60(b)(1) or
equitable tolling. (ECF No. 22, p. 5). Because Plaintiff was in possession of the Attorney-Client
Agreement on or about Ju1y 15, 2015, the Magistrate Judge further found the agreement does
not qualify as new evidence under Rule 60(b)(2). Finally, the Magistrate Judge concluded that
Plaintiff’s proffered reason for the untimely filing was excusable neglect. As such, that reason
precludes any reliance on misrepresentation as a basis for relief from judgment under Fed. R.
Civ. P. 60(b)(6). (ECF No. 22). “It clearly would be inappropriate to invoke subsection (b)(6)
to grant relief that is foreclosed under subsection (b)(1). We have observed that these two
clauses are mutually exclusive, with relief available under subsection (b)(6) only in the event that
none of the grounds set forth in clauses (b)(1) though (b)(5) are applicable.” McCurry, 298 F.3d
at 596 and Olle v. Henry & Wright Corp., 910 F.2d 357, 366 (6th Cir. 1990).
Upon a de novo review, the Court finds the Magistrate Judge correctly determined that
Plaintiff has not demonstrated a case for Rule 60(b) relief. See McCurry, 298 F.3d at 593

4

(attorney error and legal malpractice foreclose an award of relief under Rule 60(b)(1)); FHC
Equities, LLC. v. MBL Life Assurance Corp., 188 F.3d 678, 683-87 (6th Cir. 1999) (strategic
miscalculations nor counsel’s misinterpretation of the law warrant relief from judgment);
Pioneer Inv. Serv. Co. v. Brunswick Assoc’s Ltd P’ship, 507 U.S. 380, 396 (1993)(clients must
be held accountable for the acts and omissions of their attorneys). See also, Tippie v. Tennessee
Dept. of Revenue, No. 10-2702-STA-dkv, 2012 WL 3060098, *2 (W.D. Tenn. July 25, 2012)
(counsel’s inadvertent mistake or gross carelessness are insufficient grounds for Rule 60(b)(1)
relief). “Furthermore, “out-and out lawyer blunders - the type of action or inaction that leads to
successful malpractice suits by the injured client - do not qualify as ‘mistake’ or ‘excusable
neglect’ within the meaning of Rule 60(b)(1).”

Id., quoting McCurry, 298 F.3d at 596.

The

Court does not find that counsel failed to honor the Attorney-Client Agreement or made any
misrepresentations in that regard to Plaintiff. Plaintiff indicates in her motion for reconsideration
that there was simply “a huge misunderstanding.” (ECF No. 19, p. 2 & ECF No. 22, p. 4).
For the reasons stated above, the Court adopts the Magistrate Judge’s report and
recommendation and finds that the Plaintiff’s Motion for Reconsideration, ECF No. 19, should
be Denied.
IT IS SO ORDERED this 18th day of April, 2017.

s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE

5