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Markowitz v. Ynguanzo

United States District Court, W.D. Tennessee, Western Division

August 12, 2019

PAUL MARKOWITZ, Plaintiff,
v.
DAVID YNGUANZO, et al., Defendants.

          ORDER DENYING PENDING MOTIONS

          THOMAS L. PARKER UNITED STATES DISTRICT JUDGE

         This Court adopted the magistrate judge's Report and Recommendation (“R & R”), which recommended dismissal of the Complaint for failure to state a claim, and entered Judgment dismissing the case without prejudice. (ECF Nos. 9 & 10.) Plaintiff then filed two motions. (ECF No. 11 & 13.) The first motion requested an extension of time to respond to the R & R and for reconsideration of any adverse rulings. (ECF No. 9.) The second motion requests the ability to amend the first motion. (ECF No. 10.) For the reasons below, the Court DENIES both motions.

         BACKGROUND

         Plaintiff sued under several federal statutes after his arrest at a grocery store in Memphis, Tennessee. (ECF No. 1.) The Magistrate Court[1] screened the case to determine whether it was baseless or malicious, fails to state a viable claim for relief, or seeks monetary relief against an immune defendant, as required by 28 U.S.C. § 1915(e)(2). This screening led to a Report and Recommendation from the Magistrate Court recommending dismissal of the complaint for failing to state a claim upon which relief can be granted. (ECF No. 8.) The Magistrate Court noted: (1) that it is impossible to serve process on the twenty-seven John and Jane Doe defendants because the names are fictitious; (2) that the claims against the Shelby County Jail and the claims against Officer Ynguanzo in his official capacity were duplicative of the claims against Shelby County and the Memphis Police Department, respectively, and thus those claims should be dismissed; and (3) Plaintiff failed to state a claim under which relief can be granted as to the remaining Defendants. (ECF No. 8 at PageID 50.)

         Plaintiff then had fourteen days to object to the R & R. See Fed. R. Civ. P. 72(b)(2). As is its practice, the District Court Clerk's Office staff mailed a copy of the R & R to Plaintiff's physical address on file. Yet Plaintiff here did not object to the R & R. The Court thus reviewed the R & R under a clear error standard after the time for filing objections expired. This Court found no clear error in the R & R and thus entered an order adopting the R & R in its entirety and dismissing the case. (ECF No. 9.)

         Around seven days after the Court entered that order, Plaintiff moved for an extension of time to respond to the R & R, for an order requiring the parties to attend alternative dispute resolution, for leave to proceed in forma pauperis, for leave to amend his Complaint, and for the Court to excuse his untimeliness for excusable neglect, surprise, or inadvertence. (ECF No. 11.) Plaintiff later moved to amend his first motion alleging theft and fraud against various entities not named in the Complaint. (ECF No. 13.) And as part of his second motion, Plaintiff indirectly provided an updated address, the Reelfoot Manor address. (Id. at PageID 70.)

         Plaintiff did not stop here, however. He filed a Notice of Appeal fourteen days after he filed his second motion. (See ECF No. 14.) The Sixth Circuit has now entered an order holding the appeal in abeyance until this Court rules on the pending motions. (ECF No. 77.) The Court now addresses those motions.

         LEGAL STANDARDS

         Plaintiff does not specify the Federal Rule of Civil Procedure under which he seeks relief excused from his failure to timely object to the R & R. That said, the first motion contains language from Rule 60(b)(1). And a post-judgment motion to amend a complaint may be under Rule 59(e). The Court, therefore, considers the first motion under both Rules.

         I. Rule 59(e)

         A court decides a motion to amend a complaint filed under Rule 59(e) on the same factors as a Rule 15 motion to amend. Pond v. Haas, 674 Fed.Appx. 466, 473 (6th Cir. 2016) (quoting Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002)). Leave to amend is generally “freely given when justice so requires.” Morse, 290 F.3d at 799-800. But a request to amend may be denied if there is “undue delay, bad faith or dilatory motive on the part of the movant, ” or the amendment is futile. Id. at 800 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         Additionally, the Court should consider “the competing interest of protecting the finality of judgments and the expeditious termination of litigation.” Pond, 647 Fed.Appx. at 473 (quoting Morse, 290 F.3d at 800). “This latter inquiry includes asking whether the claimant has made a ‘compelling explanation' for failing to seek leave to amend prior to the entry of judgment.” Id. (citing Leisure Caviar, LLC v. U.S. Fish and Wildlife Serv., 616 F.3d 612, 617 (6th Cir. 2010); Morse, 290 F.3d at 800). This imposes a higher burden on the movant and is used to prevent litigants “from avoiding the narrow grounds for post-judgment relief under Rules 59 and 60.” Id. at 472-73 (citing Leisure Caviar, 616 F.3d at 616).

         II. Rule 60(b)(1)

         Federal Rule of Civil Procedure 60(b)(1) allows a court to relieve a party from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” Mistakes resulting from gross negligence are generally not enough, but “mistakes made as a result of excusable neglect may be set aside, especially if under the circumstances it would be equitable to do so.” Whitaker v. Associated Credit Servs., Inc., 946 F.2d 1222, 1224 (6th Cir. 1991). Like relief under Rule 59(e), relief from a judgment under Rule 60(b) is also “circumscribed by public policy favoring finality of judgments and termination of litigation.” Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001) (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992)). And so “the party seeking relief under Rule 60(b)[(1)] bears the burden of ...


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