United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER
AND AWARDING DEFENDANTS’ EXPENSES PURSUANT TO FED. R.
CIV. P. 37(b)
D. TODD, UNITED STATES DISTRICT JUDGE
Court dismissed this case as a sanction for Plaintiff Elton
Keith McCommon’s failure to comply with an order
compelling discovery and entered judgment. (ECF Nos. 46 &
47.) McCommon has filed a motion to reconsider and vacate the
order of dismissal. (ECF No. 49.) Defendants filed a response
to the motion. (ECF No. 50.) Construed as a motion to alter
or amend the judgment under Federal Rule of Civil Procedure
59(e), the motion is untimely. Therefore, the Court will
construe McCommon’s motion as a motion for relief from
a judgment or order pursuant to Federal Rule of Civil
to Rule 60(b), the Court is authorized to grant relief
“from a final judgment, order, or proceeding” for
any of these reasons:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b);
fraud . . ., misrepresentation, or misconduct by an opposing
judgment is void;
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;
other reason that justifies relief.
under Rule 60(b) is circumscribed by public policy favoring
finality of judgments and termination of litigation.”
Blue Diamond Coal Co. v. Trs. of UMWA Combined Benefit
Fund, 249 F.3d 519, 524 (6th Cir. 2001). “The
parties may not use a Rule 60(b) motion as a substitute for
an appeal.” Hopper v. Euclid Manor Nursing Home,
Inc., 867 F.2d 291, 294 (6th Cir. 1989).
case, McCommon argues the Court erred in finding dismissal
was appropriate due to his insufficiently complete discovery
responses. Such claims of legal error are properly considered
under Rule 60(b)(1) as a type of mistake. See Braggs v.
Perez, 42 F. App’x 678, 680 (6th Cir. 2002);
Pierce v. United Mine Workers of Am. Welfare and
Retirement Fund for 1950 and 1974, 770 F.2d 449, 451
(6th Cir. 1985).
asserts the discovery responses he provided were complete to
the best of his ability and that the case was dismissed on a
technicality. Though McCommon’s discovery responses
were, in fact, deficient, the case was not dismissed for that
reason alone. As noted in the order of dismissal, McCommon
failed to file any response to Defendants’ motion to
compel, failed to comply or respond in any way to the order
compelling discovery, and then also failed to file any
response whatsoever to Defendants’ motion to dismiss.
The Court reasonably concluded McCommon had no intention of
cooperating further in the discovery process and that
dismissal of the action was warranted. Nothing in the motion
persuades the Court its ruling was erroneous. The motion for
reconsideration is DENIED.
Rule of Civil Procedure 37(b)(2)(C) provides,
“[i]nstead of or in addition to” an order
sanctioning a party for disobeying a discovery order,
“the court must order the disobedient party . . . to
pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.” In the order of dismissal, the Court directed
Defendants to file an affidavit of counsel with a statement
of expenses incurred as a result of McCommon’s failure
to provide discovery. (ECF No. 46 at PageID 259.) That
documentation shows counsel expended 4.3 hours drafting the
motion to compel discovery and motion to dismiss. (ECF No. 48
at PageID 264; ECF No. 48-1 at PageID 268.) At a rate of $125
per hour, Defendants thus incurred $537.50 in attorney fees.
McCommon has not objected to counsel’s affidavit.
Court finds the amount of time expended by counsel and the
hourly fee rate requested are reasonable. The Court further
finds no circumstances in this case making an award of
expenses unjust. Therefore, McCommon shall pay to the
Defendants the amount of $537.50 for their ...