The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PAUL MARKOWITZ, )
)
Plaintiff, )
) No. 2:17-cv-02782-TLP-cgc
v. )
) JURY DEMAND
DAVID YNGUANZO, et al., )
)
Defendants. )
ORDER DENYING PENDING MOTIONS
This 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.
BACKGROUND
Plaintiff sued under several federal statutes after his arrest at a grocery store in Memphis,
Tennessee. (ECF No. 1.) The Magistrate Court1 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
1 The case was referred to the Magistrate Court for management of all pretrial proceedings under
Administrative Order 2013-05 and 28 U.S.C. § 636(b)(1)(B).
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.)
Plaintiff 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.)
Around 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 PageID 70.)
Plaintiff 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 motions.
LEGAL STANDARDS
Plaintiff 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.
I. Rule 59(e)
A court 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 F. App’x 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)).
Additionally, the Court should consider “the competing interest of protecting the finality
of judgments and the expeditious termination of litigation.” Pond, 647 F. App’x 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).
II. Rule 60(b)(1)
Federal 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 showing entitlement to such
relief by clear and convincing evidence.” Thurmond v. Wayne Cty. Sheriff Dep’t., 564 F. App’x
823, 827 (6th Cir. 2014) (citing Info-Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448,
454 (6th Cir. 2008)).
ANALYSIS
The Court entered a judgment after adopting the Magistrate Court’s recommendation that
the case be dismissed for failure to state a claim. (See ECF Nos. 9 & 10.) The R & R
recommended dismissal of the Complaint because: (1) it named twenty-seven John and Jane
Doe defendants who were not amendable to service: (2) the Shelby County Jail is a
governmental department and is not subject to suit; (3) the official capacity claims against
Officer Ynguanzo were duplicative of his claims against the Memphis Police Department; and
(4) Plaintiff failed to state a cognizable claim against the remaining defendants. (ECF No. 8.)
The Magistrate Court noted that although Plaintiff’s Complaint contained a detailed recitation
of the facts, he failed to state a clear claim for relief. (Id. at PageID 50.) The Court now
determines whether Plaintiff is entitled to the relief sought.
I. Relief Under Rule 59(e)
Plaintiff seeks to amend his Complaint under Rule 59(e) to alter the Judgment and avoid
dismissal under 28 U.S.C. § 1915(e)(2)(B). This rule imposes a heavy burden on Plaintiff and
requires him to proffer a “compelling explanation” to obtain the post-judgment relief sought.
See Pond, 647 F. App’x at 473. Plaintiff has not met this burden.
First, there has been undue delay in Plaintiff’s request to amend. Plaintiff’s objections to
the R & R were due on February 19, 2019, fourteen days after the entry of the R & R. (See ECF
No. 8.) Plaintiff did not file his current motion until April 19, 2019––two months after his
objections were due. (See ECF No. 11.) The clerk’s office mailed the R & R to Plaintiff at the
address on file, 253 Buntyn, Memphis, TN 38111, under this Court’s policy of physically
delivering filings to pro se plaintiffs who lack access to the Court’s electronic notification
system. But Plaintiff apparently did not receive the R & R because he did not inform the Court
that he changed addresses until he filed his second motion on April 29, 2019. (See ECF No.
13.)
The Court had warned Plaintiff that failure to notify the Court, in writing, of any change
of address could lead to dismissal of his case without further notice. (See ECF No. 6 at PageID
39.) He was therefore on notice of his duty to update his address with the Court. That said, he
failed to do so. The Court thus finds that Plaintiff’s undue delay in updating his address and
requesting an amendment counsels against granting the relief sought under Rule 59(e).
Second, the Court’s competing interest of protecting the finality of judgments and the
expeditious termination of litigation weighs in favor of denying Plaintiff’s motion. See Pond,
647 F. App’x at 473. The Court cannot allow a party to relitigate a case lacking a meritorious
claim after the entry of a judgment just because they did not receive a filing because of their
own negligent conduct. To do so would be to open the floodgates to a whole host of unworthy
filings. As a result, the Motion to Amend and/or to Alter Judgment under Federal Rule of Civil
Procedure 59(e) is therefore DENIED.
II. Relief Under Rule 60(b)(1)
Plaintiff has also requested relief from the Judgment because of mistake, inadvertence,
surprise, or excusable neglect under Federal Rule of Civil Procedure 60(b)(1). (ECF No. 11 at
PageID 57.) Yet this relief must also be denied for many of the same reasons as the request to
amend.
First, Plaintiff’s failure to object to the R & R was due to his own gross negligence. The
Court warned Plaintiff in November 2017––about thirteen months before the entry of the
R & R––that Plaintiff had an affirmative duty to update his address with the Court. His failure
to do so does not result from excusable neglect and it would not be equitable to provide him
relief from the Judgment.
Second, the Magistrate Court recommended dismissal because Plaintiff failed to state a
recognizable claim in his Complaint. His motions do nothing to cure that defect. It is true that
the Court gives some deference to pro se complaints under the pleading requirements of Federal
Rule of Civil Procedure 8(a). Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting
Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). That said, pro se litigants are not
exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th
Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with “unique
pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has not
spelled out in his pleading’” (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167,
1169 (6th Cir. 1975))). The Court will not act as Plaintiff’s attorney and dissect his Complaint
or motions to assert a claim for him. Plaintiff has therefore failed to show entitlement to relief
under Rule 60(b)(1) by clear and convincing evidence. See Thurmond, 564 F. App’x at 827
(citing Info-Hold, Inc., 538 F.3d at 454).
All that said, the Court DENIES Plaintiff’s Motion to Alter Judgment under Federal Rule
of Civil Procedure 60(b)(1).
CONCLUSION
For these Reasons the Court DENIES Plaintiff’s Motions to Alter Judgment/Relief from
Judgment/to Amend (ECF Nos. 11 & 13.)
SO ORDERED, this 12th day of August, 2019.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE