The opinion of the court was delivered by: Judge Mattice
Before the Court is Plaintiff's Motion to Reconsider and Reinstate Herbert Jones as Defendant.
For the reasons explained below, the Court will RESERVE ruling on such motion and allow Plaintiff until June 4, 2007, to request the entry of Defendant Herbert Jones's default.
Plaintiff filed this action on August 4, 2006, in the Chancery Court of Hamilton County, Tennessee, against Defendants Chattanooga-Hamilton County Hospital Authority, Hamilton County Sheriff's Department, and Herbert Jones. [Court Doc. No. 1.] On September 6, 2006, Defendants jointly filed a Notice of Removal with this Court, indicating that they were properly served with notice of such action on August 7, 2006. [Court Doc. No. 1.] Defendants Hamilton County Sheriff's Department and Mr. Jones did not, however, timely file a response to Plaintiff's complaint. Accordingly, on January 26, 2007, the Court entered an order requiring Plaintiff to show cause on or before February 12, 2007, why her complaint should not be dismissed as to the Hamilton County Sheriff's Department and Mr. Jones for failure to prosecute as a result of Plaintiff's failure to request an entry of default when such defendants failed to plead or otherwise respond to the complaint. [Court Doc. No. 4.]
On February 9, 2007, the parties requested that the Court enter an agreed order substituting Hamilton County, Tennessee, as a defendant in place of the Hamilton County Sheriff's Department. [Court Doc. No. 5.] Hamilton County then filed an answer to Plaintiff's complaint on February 13, 2007 [Court Doc. No. 8], and U.S. Magistrate Judge Susan K. Lee granted the parties' request to substitute on February 14, 2007 [Court Doc. No. 9].
In the meantime, on February 12, 2007, Plaintiff filed a Request for Entry of Default, in which Plaintiff requested that "the Clerk . . . enter a default against Defendant Hamilton County, Tennessee, on the basis that the record in this case demonstrates that there has been a failure to plead or otherwise defend as provided by Rule 55(a) . . . ." [Court Doc. No. 6.] Because Defendant Hamilton County filed an answer on February 13, the Clerk did not enter the default of Hamilton County. On February 14, 2007, because Plaintiff had not shown cause why her complaint should not be dismissed as to Mr. Jones, and Plaintiff had not requested the entry of Mr. Jones's default, the Court dismissed Mr. Jones as a defendant pursuant to Federal Rule of Civil Procedure 41(b). [Court Doc. No. 12.]
Plaintiff's motion requests relief pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b), however, does not provide a basis for challenging the Court's previous order, as such rule deals only with "final" judgments, orders, and proceedings. Fed. R. Civ. P. 60(b). The Advisory Committee Notes describing the 1946 amendments to the rule clarify the meaning of the word "final" in Rule 60(b):
The addition of the qualifying word "final" emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
Fed. R. Civ. P. 60; see also 11 Charles Alan Wright, Arthur R. Miller, & May Kay Kane, Federal Practice and Procedure § 2852 (2d ed. 1995) ("Thus, the power of a court to modify an interlocutory judgment or order at any time prior to final judgment remains unchanged and is not limited by the provisions of Rule 60(b)."). The order from which Plaintiff seeks relief is not a final judgment, and final judgment has not yet been entered; as a result, Rule 60(b) is not applicable. The Court, however, will treat Plaintiff's motion as a request for the Court to reconsider its interlocutory order dismissing Mr. Jones as a defendant.
Pursuant to Federal Rule of Civil Procedure 54(b), an order that "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." In other words, "[u]ntil a district court enters a judgment, it may alter or amend any of its orders." Jaynes v. Austin, 20 F. App'x 421, 425, 2001 WL 1176424, at *3 (6th Cir. Sept. 25, 2001).
Plaintiff requests that the Court vacate its order dismissing Mr. Jones as a defendant on the basis that "Plaintiff should not be punished for the excusable confusion associated with the docketing and electronic filing in this case." The confusion referenced by Plaintiff relates to two issues. First, the Court's web site directs a plaintiff requesting the entry of a defendant's default to file in CM/ECF a Request for Entry of Default and an Affidavit in support of such request and to email a proposed Entry of Default to the Clerk. Plaintiff asserts that she attempted to file the proposed Entry of Default in CM/ECF and ...