Nieman v. RLI Corp. et al

Filing 18

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Judge Jane J Boyle on 10/6/2015) (ctf)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON NIEMAN,
Plaintiff,
V.
KEITH HALE, ET AL.,
Defendants.

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No. 3:14-mc-38-B-BN

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files, and records in this case, and the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated August 4,
2015, and Defendants Keith Hale and Insurance Search Group’s objections and Plaintiff Jason
Nieman’s response thereto, the Court finds that the Findings, Conclusions, and Recommendation of
the Magistrate Judge are correct, and they are accepted as the Findings, Conclusions, and
Recommendation of the Court. The Court, however, does partially accept Defendants’ request for
clarification of the statement on pages 1-2 of the Findings, Conclusions, and Recommendation and
will, to avoid unnecessarily addressing any factual disputes that may have been the subject of nowresolved litigation, clarify that that statement should read: “During March 2011, Plaintiff Nieman
applied for a job with RLI Insurance Co., which was using Defendant Hale, a professional insurance
employment recruiter who does business as Defendant ISG, to find qualified applicants.”
Defendants filed along with their objections a Federal Rule of Civil Procedure 60(b) motion
seeking an order vacating the judgments awarding Plaintiff court costs payable by Defendants out of

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the United States Court of Appeals for the Seventh Circuit and the United States District Court for
the Central District of Illinois in the amounts of $618.00 and $345.00, respectively. See Dkt. No. 16.
Plaintiff has responded to Defendants’ Rule 60(b) motion, see Dkt. No. 17, and Defendants’ time to
reply has passed.
Invoking Federal Rules of Civil Procedure 60(b)(3) and 60(b)(5), Defendants assert that a
Rule 60(b) vacatur order is warranted based on “the inequity of ordering Defendant Hale to pay for
Plaintiff Nieman’s federal appeal court costs in light of the Illinois State Court dismissal in Hale’s
favor, with prejudice” and on “Nieman’s factless, twisted and malicious misrepresentations extant in
his remanded Illinois Case.” Dkt. No. 16 at 14-15.
Federal Rule of Civil Procedure 60(b)(3) provides that “the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons: ... fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party.” FED. R. CIV. P. 60(b)(3). But any Rule 60(b)(3) motion must be filed “no more than a year
after the entry of the judgment or order or the date of the proceeding.” FED. R. CIV. P. 60(c)(1). The
judgments at issue were rendered in 2013 and were registered as judgments in this Court in March
2014. See Dkt. No. 1. Defendants’ Rule 60(b)(3) motion filed on August 18, 2015 is therefore
untimely. See FED. R. CIV. P. 60(c)(1); Cadle Co. v. Neubauer, 562 F.3d 369, 372 (5th Cir. 2009). The
fact that the Illinois state court did not dismiss Plaintiff’s state-law claims in the underlying Illinois
action until earlier this year – allegedly, according to Defendants, based on Plaintiff’s misconduct –
is of no moment where “[i]t would make little sense to toll the limitations period of rules designed to
deal with [misconduct] because [misconduct] was present.” In re Lothian Oil, Inc., 508 F. App’x 352,
357 (5th Cir. 2013).
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Federal Rule of Civil Procedure 60(b)(5) provides that “the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons: ... 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.” FED. R. CIV. P. 60(b)(5).
Defendant do not claim that the judgments for Plaintiff’s court costs entered by the Seventh Circuit
and the Central District of Illinois and now registered in this Court have been satisfied, released, or
discharged. And the state court’s subsequent dismissal of Plaintiff’s state-law claims on summary
judgment did not reverse or vacate, within the meaning of Rule 60(b)(5), the earlier judgments for
court costs entered by the federal courts prior to the underlying Illinois case’s remand to state court.
See In re Delta Starr Broadcasting, L.L.C., 422 F. App’x 362, 367 (5th Cir. 2011).
Rather, Defendants assert that, because they “prevailed in finality, the costs awarded at the
Federal Appellate level are inequitable.” Dkt. No. 16 at 12. But the Seventh Circuit and the Central
District of Illinois assessed court costs based on the proceedings before those courts, in which Plaintiff
ultimately prevailed as to Defendants’ motions to dismiss and for sanctions. The state court’s
subsequent ruling that Plaintiff’s state-law claims should be dismissed without prejudice on summary
judgment did not address or disturb those courts’ assessment of court costs or the reversal of the
Illinois federal district court’s granting of Defendants’ motion to dismiss and motion for sanctions
against Plaintiff. See Dkt. No. 13-1.
“Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment
or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a
judgment or order if a significant change either in factual conditions or in law renders continued
enforcement detrimental to the public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009) (internal
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quotation marks omitted). “The party seeking relief bears the burden of establishing that changed
circumstances warrant relief.” Id. Defendants have not shown any significant change either in factual
conditions or in law that renders enforcement of the judgments for court costs in the proceedings in
the Seventh Circuit and Central District of Illinois – originally entered by those federal courts and
now, as registered here, judgments of this Court – inequitable. That Defendants ultimately prevailed
against Plaintiff on his state-law claims on remand in state court, after which Plaintiff appealed but
then dismissed his appeal, does not render continued enforcement of judgments for a total of $935.00
in court costs assessed based on the outcome of prior proceedings, which the state court did not revisit
in its subsequent judgment of dismissal, detrimental to the public interest or in any sense within the
meaning of Rule 60(b)(5) inequitable.
IT IS, THEREFORE, ORDERED that (1) the Findings, Conclusions, and Recommendation
of the United States Magistrate Judge are accepted; (2) that Plaintiff’s Motion for Specific
Attachment of Assets [Dkt. No. 6] for the judgments for court costs registered under 28 U.S.C. §
1963 is GRANTED only to the extent that Plaintiff is ordered (a) to file a motion showing that he
satisfies the requirements for a turnover order under Texas Turnover Statute, Texas Civil Practice
& Remedies Code § 31.002 or, alternatively, an order requiring attachment of specific assets under
some other specific source of authority, (b) to specifically identify the property that he seeks to attach
(as broad property categories are not permissible), to specifically identify the source of legal authority
for the attachment or turnover (such as the Texas Turnover Statute, Texas Civil Practice &
Remedies Code § 31.002), and to show that Defendants own the property, that the property cannot
be readily attached, and why each asset is not exempt from a turnover order or attachment, and (c)
to file this new motion under seal pursuant to Federal Rule of Civil Procedure 5.2 and Northern
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District of Texas Local Civil Rule 79.3 if he includes any confidential information, such as Defendant
Hale’s financial accounts; and (3) that Defendant’s Rule 60 Motion for Relief from Judgment or
Order [Dkt. No. 16] is DENIED.
SO ORDERED this 6th day of October, 2015.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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