FABIAN v. TILLOTSON (2022)

ORDER: (1) DENYING PRO SE PLAINTIFF'S MOTION FOR RECONSIDERATION; AND (2) CLARIFYING THAT THIS CASE REMAINS TERMINATED ON THE DOCKET

This Court previously granted judgment in favor of Defendants and terminated this case on the docket. Doc. No. 26. This civil case is now back before the Court on pro se Plaintiff Robert C. Fabian's (“Fabian”) “Motion to Reopen Case,” which, when liberally construed, constitutes a motion for reconsideration under Fed. R. Civ. P. 60. Doc. No. 28.¹ Defendants James R. Tillotson, Kettering Planning and Development, Kettering Police Department, and John Everett all responded in opposition. Doc. No. 29. This matter is ripe for review.

Fabian alleges in his motion for reconsideration that the Court erred in dismissing his complaint because (1) he did not recognize the need to state a claim in his prior complaint; and (2) the evidence used to ultimately condemn his property was fabricated. See Doc. No. 28 at PageID 326–29. Defendants respond that, notwithstanding these allegations, Fabian's motion fails for the same reasons his case did previously—he sues parties that cannot be sued, and fails to state any cognizable constitutional claim. See Doc. No. 29.

“Federal Rule of Civil Procedure 60(b) permits ‘a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances.’ ” Kemp v. United States, ––– U.S. ––––, 142 S. Ct. 1856, 1861, 213 L.Ed.2d 90 (2022) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)). Per Fed. R. Civ. P. 60(b)(1). relief is warranted for “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Likewise, Plaintiff's can offer “newly discovered evidence that, with reasonable diligence, could not have been discovered in time” to support relief. Fed. R. Civ. P. 60(b)(2). “Fraud, ․ misrepresentation, or misconduct by an opposing party” provides another avenue for relief. Fed. R. Civ. P. 60(b)(3). Plaintiff's may also seek relief under Fed. R. Civ. P. 60(b)(6). citing “any other reason that justifies relief”—provided that “ ‘extraordinary circumstances’ ․ justify reopening” the case. Kemp, 142 S. Ct. at 1861 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n. 11, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)).²

Fabian's requests for relief—when construed in his favor—do not meet the benchmark for relief under Fed. R. Civ. P. 60. Taking his allegations as true, his claims in his original complaint failed because he sued several parties that were immune or not properly implicated in his lawsuit. See Doc. No. 26 at PageID 319–21. For example, Judge Long was entitled to absolute immunity, see Foster v. Walsh, 864 F.2d 416, 417–18 (6th Cir. 1988), and Fabian made no allegations against Defendant Lauren Dever, see Schomaker v. Gen. Motors, No. 1:10-cv-765, 2011 WL 4433167, at *7 (W.D. Mich. Aug. 2011). Even assuming, arguendo, that Fabian can overcome these insurmountable barriers, the merits of his motion fare no better.

Begin with Fed. R. Civ. P. 60(b)(1) and (b)(2). Rule 60(b)(1) applies “in only two situations: (1) when a party has made an excusable mistake or an attorney has acted without authority, or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)). For “a Rule 60(b)(2) motion, a movant must demonstrate (1) that it exercised due diligence in obtaining the information and (2) [that the newly discovered] evidence is material and controlling and clearly would have produced a different result if presented before the original judgment.” Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998) (quotation marks and citation omitted). Fabian alleges that he misunderstood the legal standard applicable to his claims, so he ought to be given another chance to present evidence to support his claims. Doc. No. 28 at PageID 327–28. Fabian's misunderstanding is not “an excusable mistake” worthy of relief because “[n]either carelessness nor ignorance of the law on the part of the moving party will justify relief under Fed. R. Civ. P. 60(b)(1).” Merriweather v. Wilkinson, 83 F. App'x 62, 63 (6th Cir. 2003) (citations omitted) (affirming denial of pro se prisoner's Rule 60 motion). Nor does this show Fabian's reasonable diligence to warrant relief under Fed. R. Civ. P. 60(b)(2). See Rhoden v. Campbell, 202 F.3d 269, No. 98-6298, 1999 WL 1206958, at *4 (6th Cir. Dec. 10, 1999) (per curiam) (unpublished table decision) (district court properly denied Rule 60(b)(2) motion where plaintiff made no attempt to show why he failed to exercise diligence).

Rule 60(b)(3) does not apply here either. “Rule 60(b)(3) ․ requires a demonstration by the moving party, supported by clear and convincing evidence, that one or more of the three kinds of misbehavior referred to in the rule occurred.” Lester v. Wow Car. Co., 675 F. App'x 588, 591 (6th Cir. 2017) (quotation omitted). Fabian merely alleges—without any support—that Defendants fabricated evidence which led to the condemnation of his property. See Doc. No. 28. That does not sustain his burden and, consequently, he is not entitled to relief based on Rule 60(b)(3).

The catchall provision—Fed. R. Civ. P. 60(b)(6)—also is inapplicable. “Relief pursuant to Rule 60(b)(6) is available ‘only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule’ and ‘only as a means to achieve substantial justice.’ ” Tanner v. Yukins, 776 F.3d 434, 443 (6th Cir. 2015) (emphasis in original) (quoting Olle v. Henry Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)). It “contemplates situations where ‘something more ․ is present’ than those situations contemplated by the other clauses in the rule. ‘The ‘something more,’ ․ must include unusual and extreme situations where principles of equity mandate relief.’ ” Id. (emphasis in original) (quoting Olle, 910 F.2d at 365). Relevant factors “may include, in an appropriate case, ‘the risk of injustice to the parties’ and ‘the risk of undermining the public's confidence in the judicial process.’ ” Buck v. Davis, 580 U.S. 100, 137 S. Ct. 759, 778, 197 L.Ed.2d 1 (2017) (quoting Liljeberg, 486 U.S. at 864, 108 S.Ct. 2194). Unfortunately for Fabian, his claims—that he should get additional time to make his arguments again with additional evidence—are not such a circumstance. As stated in this Court's previous order, Fabian's allegations in his complaint—even if taken as true—run afoul of several legal principles, which shield Defendants from liability. See Doc. No. 26 at PageID 319–21. Thus, he has not shown extraordinary circumstances that entitle him to relief. See, e.g., O'Connel v. Miller, 8 F. App'x 434, 435 (6th Cir. 2001) (pro se plaintiff's Rule 60(b)(6) motion was properly rejected because it restated legally invalid arguments raised before the district court on the merits).

Finally, the Court respects that Fabian's present motion invokes his due process rights, as he generally alleges that Defendants’ actions caused him to lose his home. See, e.g., Doc. No. 28 at PageID 326–29. As the Court stated in its previous order, Defendants exercised their lawful authority to abate a nuisance on the property—one that existed over several years and was only abated after Fabian received multiple notices. See Doc. No. 13-1 at PageID 166–99, 213–17, 220–23. “Abating a nuisance after adequate notice is not a [federal] constitutional violation.” Doc. No. 26 at PageID 323 (first citing Davet v. City of Cleveland, 456 F.3d 549, 553–54 (6th Cir. 2006); then citing Crow v. City of Springfield, 15 F. App'x 219, 224 (6th Cir. 2001); and then citing McWain v. Clay Twp., No. 3:20-cv-123, 2022 WL 952730, at *5–6 (S.D. Ohio Mar. 30, 2022)). Fabian's allegations in his present motion do not overcome this clear principle of law.

Therefore, Fabian's motion for reconsideration (Doc. No. 28) is DENIED. This case remains TERMINATED on the docket.

IT IS SO ORDERED.

FOOTNOTES

1.   As with all pro se litigants, Fabian's allegations are liberally construed in his favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).

2.   Rule 60(b)(4) and (b)(5) are not implicated here, as those sections deal with circumstances irrelevant to Fabian's motion: void and satisfied judgments. See, e.g., Antoine v. Atlas Turner, Inc., 66 F.3d 105, 108 (6th Cir. 1995) (“A judgment is void under 60(b)(4) ‘if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law’ ” (quoting In re Edwards, 962 F.2d 641, 644 (7th Cir. 1992))).

Michael J. Newman, United States District Judge