United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION AND DENYING PLAINTIFF'S MOTION FOR
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE.
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.
FINDINGS OF FACT
Court adopts the Magistrate Judge's proposed findings of
facts as summarized in the instant Report and Recommendation.
(ECF No. 22).
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).
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
for Rule 60(b) Relief
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).
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 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).
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