United States District Court, W.D. Tennessee, Western Division
ORDER DENYING PENDING MOTIONS
L. PARKER UNITED STATES DISTRICT JUDGE
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.
sued under several federal statutes after his arrest at a
grocery store in Memphis, Tennessee. (ECF No. 1.) The
Magistrate Court 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.)
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.)
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
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
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.
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)).
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).
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