United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Austin Smiley's January 19, 2017
motion requesting relief from the judgment entered in this
matter on June 30, 2016. (Mot. for Relief from J., ECF No. 9
(“Mot. for Relief”); cf. Am. Br. in Supp. of Mot.
for Relief from J., ECF No. 13 (“Br. ISO Mot. for
Relief”).) On July 31, 2017, the Court ordered
Plaintiff to file an additional brief in support of his
Motion for Relief under Rule 60(b). (ECF No. 14.) Plaintiff
filed his Brief In Support of Motion for Relief From Judgment
on August 14, 2017. (ECF No. 15.)
reasons discussed below, the Motion for Relief is DENIED.
facts are stated more fully in the Order dated July 31, 2017.
(ECF No. 14.)
initiated this action on October 1, 2015, by filing a
Complaint for Trademark Infringement. (ECF No. 1.) The next
day, Plaintiff filed an Amended Complaint for Trademark
Infringement. (ECF No. 2.)
there was silence. Plaintiff did nothing to pursue his case.
The Court entered a Show-Cause Order on June 2, 2016, in
which it directed Plaintiff “to show cause within
fourteen (14) days of the entry of this order why this matter
should not be dismissed for failure to prosecute.” (ECF
No. 5 at 36.)Plaintiff did not respond. On June 30,
2016, the Court entered an order dismissing this matter for
failure to prosecute and a corresponding judgment. (ECF No.
6; ECF No. 7.)
January 19, 2017, JB Smiley, Plaintiff's new counsel,
filed the Motion to Substitute and the Motion for Relief.
(ECF No. 8; ECF No. 9; cf. ECF No. 10; ECF No. 11.) The
Motion to Substitute represents that Plaintiff's prior
counsel has been suspended from the practice of law and asks
that Smiley be substituted as Plaintiff's counsel. (ECF
No. 9 at 41.) The Motion to Substitute was GRANTED on July
31, 2017. (ECF No. 14 at 109-10.)
Motion for Relief asks the Court to vacate the Dismissal
Order. (ECF No. 9 at 42; see also ECF No. 11.) Alt hough the
Motion for Relief purports to be based on Rule 60(b),
Plaintiff's brief addresses Rule 41(b). Because the
Motion for Relief does not address Rule 60(b), which would be
the basis for a decision, the Court ordered Plaintiff to file
a new brief in support of his Motion for Relief from
Judgment. (ECF No. 14 at 109-110.) On August 14, 2017,
Plaintiff filed the Brief In Support of Motion for Relief
From Judgment in accordance with the Court's order. (ECF
Standard of Review
60(b) provides grounds for relief from a final judgment for
enumerated reasons, including “mistake, inadvertence,
surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
A Rule 60(b)(1) motion “must be made within a
reasonable time . . . 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). “In determining whether relief
is appropriate under Rule 60(b)(1), ” three factors
control: “(1) culpability-that is, whether the neglect
was excusable; (2) any prejudice to the opposing party; and
(3) whether the party holds a meritorious underlying claim or
defense. A party seeking relief must first demonstrate a lack
of culpability before the court examines the remaining two
factors.” Yeschick v. Mineta, 675 F.3d 622,
628-29 (6th Cir. 2012) (internal quotation marks omitted).
Rule 60(b)(1) must be applied “equitably and liberally
. . . to achieve substantial justice.” Williams v.
Meyer, 346 F.3d 607, 613 (6th Cir. 2003) (internal
quotation marks omitted).
can also provide relief for “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(6). Rule 60(b)(6)
“is a catchall provision that provides for relief from
a final judgment for any reason justifying relief not
captured in the other provisions of Rule 60(b).”
West v. Carpenter, 790 F.3d 693, 696 (6th Cir.
2015). “Rule 60(b)(6) applies only in exceptional or
extraordinary circumstances where principles of equity
mandate relief.” Id. at 696-97.
must be held accountable for the acts and omissions of their
attorneys.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 396 (1993).
“Thus, in assessing a claim of excusable neglect,
‘the proper focus is upon whether the neglect of [the
parties] and their counsel was
excusable.'” McCurry ex rel. Turner v.
Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 594
(6th Cir. 2002) (alteration in original) (quoting Pioneer
Inv. Servs. Co., 507 U.S. at 397).