The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mark D. Garnett, ) CASE NO.: 5:19CV2864
)
Plaintiff, ) JUDGE JOHN ADAMS
)
v. ) ORDER
)
Akron Cit School District Board of )
Education, et al., ) (Resolving Docs. 75, 77, 82, 83)
)
)
Defendants. )
This matter appears before the Court on a motion for relief pursuant to Fed.R.
Civ.P. 60(B) filed by Plaintiff Mark D. Garnett through counsel. Doc. 75. Defendants
have moved for leave to file an opposition to the motion, and that request is hereby
GRANTED. Doc. 77. In addition, both counsel and Garnett, pro se, have moved for
Garnett’s counsel to be removed in this matter. Docs. 82, 83. Those motions are
GRANTED. The Court has been advised, having reviewed the motion to vacate, its
opposition, and the reply in support. For the reasons that follow, that motion is DENIED.
Under Rule 60(b), a motion to vacate may be granted only for certain specified
reasons: 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(b); 3) fraud, misrepresentation, or other misconduct of an
adverse party; 4) the judgment is void; 5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application; or 6) any other reason justifying relief from the operation of the judgment.
Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998)(quoting Fed.R.
Civ.P. 60(B)).
In support of his motion, Garnett’s counsel contends that some form of
technological error resulted in him never receiving notice of Defendants’ motion for
summary judgment (Doc. 72) and its accompanying filings (Docs. 66, 67, 68, 69, 70 and
71). Garnett’s counsel offered an affidavit from his IT employee that indicated that a
thorough search of his email did not reveal evidence that notice of these filings had been
received. Garnett, however, conceded that he learned from District personnel that the
system indicated that notices had been properly sent to his email.
Rule 60(b)(1) provides that “the court may relieve a party or a party's legal
representative from a final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1). In order
to be granted relief under Rule 60(b)(1), the moving party must demonstrate: “(1) The
existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he has a
meritorious defense.” Marshall v. Monroe & Sons, Inc., 615 F.2d 1156, 1160 (6th
Cir.1980) (citations omitted). Rule 60(b) does not afford defeated litigants a second
chance to convince the court to rule in his or her favor by presenting new explanation,
new legal theories, or proof. See Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir.
2001) (citing Couch v. Travelers Ins. Co., 551 F.2d 958, 959 (5th Cir.1977)). The courts
have defined “neglect” to include “‘late filings caused by mistake, inadvertence, or
carelessness, as well as intervening circumstances beyond the party’s control.’” Id. at 386
(quoting Pioneer Invest. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 388 (1993)).
Although Rule 60(b)(1) does not define the term “excusable neglect,” courts have
determined the existence of excusable neglect by making an equitable determination
based upon the following factors: “(1) the danger of prejudice to the other party, (2) the
length of delay, (3) its potential impact on judicial proceedings, (4) the reason for the
delay, and (5) whether the movant acted in good faith.” Id. (citing Pioneer, 507 U.S. at
395). However, where the district court granted summary judgment on the merits, rather
than on procedural default, these factors are not controlling. See id., 250 F.3d at 386. “An
attorney’s inexcusable neglect is normally attributed to his client.” Allen v. Murph, 194
F.3d 722, 723 (6th Cir. 1999) (citation omitted).
Garnett’s motion fails for several reasons. First, Garnett has never offered a
meritorious defense. Instead, Garnett seeks to have the Court’s prior order granting
summary judgment vacated without ever offering what his opposition would entail. For
that reason alone, his motion could be denied.1 However, the Court also finds that
Garnett’s counsel has failed to demonstrate excusable neglect.
On April 15, 2022, the Court resolved the parties’ dispute regarding whether
additional discovery was necessary prior to engaging in motion practice. Doc. 65.
Garnett’s counsel does not dispute receiving this filing. The Court’s order set May 27,
2022 as the deadline for filing dispositive motions. Consistent with that order,
Defendants filed their motion for summary judgment on May 27, 2022. The Court did
not grant summary until September 8, 2022, 104 days after the motion was filed. In turn,
counsel did not file his motion to vacate for another 18 days, submitting it on September
26, 2022. While counsel suggests that a requirement that he check the docket “on a daily
1 The Court notes that it reviewed the law and evidence submitted by Defendants to ensure that judgment
was legally correct prior to granting the motion for summary judgment.
basis” is “ridiculous,” no argument has been made that would impost such a requirement.
However, when counsel concedes knowledge of the dispositive motion deadline and then
fails to review the docket for more than three months, the Court cannot find excusable
neglect.2
Based upon the above, the motion to vacate is DENIED.
IT IS SO ORDERED.
Date: January 18, 2023 ____/s/ Judge John R. Adams_______
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT
2 While counsel appears to also seek relief under 60(b)(6), the same factors detailed above require denial of
his motion under this catchall provision as well.