Brown v. Devos

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

L. YVONNE BROWN,

Plaintiff,

v. Case No.: 2:20-cv-286-FtM-38MRM

ELISABETH DEVOS, UNITED

STATES DEPARTMENT OF

EDUCATION, FLORIDA GULF

COAST UNIVERSITY BOARD OF

TRUSTEES, KARL SMESKO,

KELLY BROCK, and RODERICK

ROLLE,

Defendants.

/

ORDER1

Before the Court is Plaintiff L. Yvonne Brown’s Motion to Vacate Order and

Reinstate Case (Doc. 16). Also here is Brown’s Motion for Additional Time to File

Notice of Appeal (Doc. 15). The Court denies both Motions.

On July 8, the Court issued an Order to Show Cause on why the case should

not be dismissed for failure to serve and prosecute. (Doc. 11). Brown responded

on July 24 but did not provide a sufficient explanation. (Doc. 12). So on August

18, the Court dismissed for failure to serve, prosecute, and comply with a Court

Order. (Doc. 13). Now, a month and a half later, Brown asks the Court to vacate

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this Order.

its Order dismissing the case. According to Brown, she suffered COVID-19

symptoms in “early July” and was self-quarantined in Texas until August 18. So

Brown says she could not comply with the Order to Show Cause and did not know

about the Court’s dismissal Order until October 2.

Liberally construed, the Motion presents a request for relief from judgment

under Federal Rule of Civil Procedure 60(b). See Nisson v. Lundy, 975 F.2d 802,

806 (11th Cir. 1992) (noting an untimely motion to amend under Rule 59 can be

considered under Rule 60(b)). A court can relieve a party of a final judgment for

the six reasons listed in Rule 60(b). The decision to grant a motion for

reconsideration after judgment is within a trial court’s sound discretion. Region 8

Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.

1993). While Brown does not argue entitlement to relief under any particular Rule,

the basis most applicable to her argument is Rule 60(b)(1). See Grant v. Pottinger-

Gibson, 725 F. App’x 772, 775 (11th Cir. 2018) (refusing to consider relief under

Rule 60(b)(6) because circumstances offered by movant fell within Rule 60(b)(1)).2

A court may grant relief from judgment for “mistake, inadvertence, surprise,

or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Excusable neglect is usually “an

equitable inquiry turning on ‘all relevant circumstances,’ and the pertinent factors

include ‘the danger of prejudice to the opposing party, the length of the delay and

its potential impact on judicial proceedings, the reason for the delay, including

whether it was within the reasonable control of the movant, and whether the

2 Even if Rule 60(b)(6) applied, the Court does not find extraordinary circumstances here.

movant acted in good faith.’” Pottinger-Gibson, 725 F. App’x at 775 (quoting

Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996)).

Typically, “Illness, by itself, will not support a finding of excusable neglect.” McGill

v. Pinnacle Fin. Corp., No. 6:12-cv-1142-Orl-28TBS, 2013 WL 4046978, at *2

(M.D. Fla. Aug. 9, 2013) (citing Lender v. Unum Life Ins. Co. of Am., 519 F. Supp.

2d 1217, 1223 (M.D. Fla. 2007)).

After reviewing the Motion and applicable law, Brown did not make a

showing to justify vacating the Court’s dismissal Order. To start, illness is not

usually a sufficient reason to grant this relief. E.g., id. What is more, even if Brown

were sick and self-quarantined, she still received and responded to the Order to

Show Cause during that time. (Doc. 12). And Brown did not suggest she needed

more time to comply with the previous extensions the Court gave. So there is no

reason to vacate the Court’s later dismissal Order—which was issued when Brown

was apparently out of self-quarantine. Relatedly, if Brown did not receive the

Court’s dismissal Order, it resulted from failing to provide the Court with a current

address. It is every party’s duty to provide the Court with a current address. E.g.,

Gerzon v. IHOP Rest. Corp., No. 8:17-CV-870-T-27TBM, 2017 WL 1954821, at *1

n.1 (M.D. Fla. May 10, 2017). The docket shows the Court mailed Brown the

dismissal Order and it was not returned as undeliverable. In fact, Brown signed

these filings with the same address in Texas on file with the Court. Finally, the

Court gave Brown multiple chances to remedy the deficiencies, but those

opportunities were not taken. In short, Brown has not offered a reason to excuse

her failure to serve, prosecute, or comply with a Court Order.

Turning to the Motion for extension of time, it fails for similar reasons. A

court can “extend the time to file a notice of appeal if ... [the movant] shows

excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)Gi). Brown tries to

show neither. Nor does the Court find either present on these facts. Brown simply

says an extension of timeis necessary because the Motion to Vacate is pending and

may obviate the need for an appeal. But Federal Rule of Appellate Procedure

4(a)(4)(A) already contemplates tolling for postjudgment motions in some

circumstances. And Brown does not make any argument for why an extension is

necessary here.

Accordingly, it is now

ORDERED:

(1) Plaintiffs Motion to Vacate Order and Reinstate Case (Doc. 16) is

DENIED.

(2) Plaintiffs Motion for Additional Time to File Notice of Appeal (Doc. 15)

is DENIED.

DONE and ORDERED in Fort Myers, Florida on October 5, 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record