State of West Virginia v. Ziegler

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

STATE OF WEST VIRGINIA,

Plaintiff,

v. Civil Action No. 2:19-cv-00325

JOSEPH ZIEGLER,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is defendant’s motion for relief from

judgment, filed December 4, 2019.

I.

On April 26, 2019, defendant Joseph Ziegler, acting

pro se, filed a notice of removal, seeking to remove a

misdemeanor criminal case, Case No. 19-M08M-00187, brought

against him in the Magistrate Court of Clay County, West

Virginia. The state charges against defendant included

(1) reckless driving, (2) driving without car insurance,

(3) driving an unregistered vehicle, (4) driving without an

operator’s license, and (5) driving under the influence. See

Commitment Order, ECF 3-1.

Defendant filed his notice of removal on the ground

that plaintiff “blatantly violat[ed] this Pro Se Defendant-

Petitioner’s clearly established Federal Civil Rights

unambiguously protected under Equal Protection Clause Right to

Fair Jury Trial, Due Process of Law, Access to the Courts, Right

to Property, Right to Association, Freedom of the Press,

Interstate Travel, Commerce, Privileges, Immunities and Comity

Clause and/or Federal Constitutional Rights protected under

Federal Law under Law-of-the-Case Doctrine.” Not. Removal 2.

On September 19, 2019, the court entered a memorandum

opinion and order remanding this case to the Clay County

Magistrate Court. The court concluded that the notice of

removal lacked allegations to set forth a valid basis for

removal of defendant’s criminal case. On December 4, 2019,

defendant filed the instant motion and a memorandum of law in

support thereof pursuant to Rule 60(b) of the Federal Rules of

Civil Procedure. See Def.’s Mot. Relief J., ECF No. 10 (“ECF

No. 10”); Def.’s Mem., ECF No. 11 (“ECF No. 11”).1 Although not

plainly stated in these filings, it appears defendant maintains

that he is entitled to relief under subsections (1), (4), and

1 The caption in the memorandum of law provides the case number

of Ziegler v. Clay County Sheriff, No. 2:19-cv-00410 (S.D.W. Va.

filed May 28, 2019), which is a separate case involving

defendant pending in this court. See ECF No. 11.

(6) of Fed. R. Civ. P. 60(b). The State of West Virginia has

yet to file a response or otherwise make an appearance since

this case was removed.

II.

Under Rule 60(b), a court may relieve a party from

judgment for reasons that include the following: “(1) mistake,

inadvertence, surprise, or excusable neglect . . . (4) the

judgment is void . . . or (6) any other reason that justifies

relief.” Fed. R. Civ. P. 60(b)(1), (4), (6). “It is a well

settled principle of law that a Rule 60(b) motion seeking relief

from a final judgment is not a substitute for a timely and

proper appeal.” Dowell v. State Farm Fire & Cas. Auto. Ins.

Co., 993 F.2d 46, 48 (4th Cir. 1993) (citing Ackermann v. United

States, 340 U.S. 193, 198 (1950)). Therefore, a party seeking

relied under Rule 60(b) must first show the following:

“timeliness, a meritorious [claim or] defense, a lack of unfair

prejudice to the opposing party, and exceptional circumstances.”

Id. (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.

1984)); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011).

“Rule 60(c)(1) requires that 60(b) motions ‘be made within a

reasonable time,’ Fed. R. Civ. P. 60(c)(1), and the movant bears

the burden of showing timeliness.” Moses v. Joyner, 815 F.3d

163, 166 (4th Cir. 2016) (citing Werner, 731 F.2d at 206–07

& n.1). After demonstrating these initial threshold

requirements, the party seeking relief must then satisfy one of

the six subsections of Rule 60(b). Werner, 731 F.2d at 207.

As a preliminary mater, defendant offers no reason for

his delay in filing this motion. Defendant filed the motion on

December 4, 2019, a little less than three months after the

court’s September 19, 2019 ruling. The Fourth Circuit has “held

on several occasions that a Rule 60(b) motion is not timely

brought when it is made three to four months after the original

judgment and no valid reason is given for the delay.” McLawhorn

v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991)

(citations omitted). Moreover, defendant makes no effort to

meet any of the other threshold requirements of a meritorious

claim or defense, lack of unfair prejudice to the opposing

party, or exceptional circumstances that might warrant the

motion.

Even assuming defendant met these threshold

requirements, defendant does not show that he is entitled to

relief under one of the six subsections of Rule 60(b). First,

defendant argues “that it would be a mistake, inadvertence, or

excusable neglect” under Rule 60(b)(1) for the court to follow

its previous ruling. See ECF No. 10 at 4. Although a “mistake”

under Rule 60(b)(1) may include mistakes by the court in

“certain limited instances,” this subsection does not provide

relief “[w]here the motion is nothing more than a request that

the district court change its mind.” See United States v.

Williams, 674 F.2d 310, 313 (4th Cir. 1982). Insofar as

defendant challenges the court’s substantive ruling under Rule

60(b)(1), courts have required such motions to be filed within

the 30-day deadline required for the filing of a notice of

appeal. See, e.g., Mendez v. Republic Bank, 725 F.3d 651, 659

(7th Cir. 2013); Aikens, 652 F.3d at 501–02 (“This court has

repeatedly recognized that a Rule 60(b) motion is not designed

to serve as an alternative for an appeal.”); Cashner v. Freedom

Stores, Inc., 98 F.3d 572, 578 (10th Cir. 1996). The deadline

to file a notice of appeal expired well before defendant’s

motion for relief from judgment. Therefore, defendant is not

entitled to relief under Rule 60(b)(1).

Unlike a motion filed under the other subsections of

Rule 60(b), a Rule 60(b)(4) motion may be brought at any time.

See Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4th Cir.

2002)); In re Heckert, 272 F.3d 253, 256 (4th Cir. 2001); Vinten

v. Jeantot Marine Alls., S.A., 191 F. Supp. 2d 642, 649–50

(D.S.C. 2002) (“Although the Fourth Circuit has not expressly

stated that the threshold requirements are inapplicable with

regard to Rule 60(b)(4) motions, the court’s use of de novo

review strongly indicates that these requirements, which

necessitate the use of discretion by the district court, are not

applicable in this situation.”).

Still, a judgment is “void” under Rule 60(b)(4) “only

in the rare instance where a judgment is premised either on a

certain type of jurisdictional error or on a violation of due

process that deprives a party of notice or the opportunity to be

heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S.

260, 271 (2010); Wells Fargo Bank, N.A. v. AMH Roman Two NC,

LLC, 859 F.3d 295, 299 (4th Cir. 2017) (“An order is ‘void’ only

if the court lacked personal or subject matter jurisdiction or

acted contrary to due process of law.”). A litigant may not use

a motion brought pursuant to Rule 60(b)(4) merely to challenge a

result on the merits that he did not timely appeal. See Wendt

v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005) (“[W]e narrowly

construe the concept of a ‘void’ order under Rule 60(b)(4)

precisely because of the threat to finality of judgments and the

risk that litigants . . . will use Rule 60(b)(4) to circumvent

an appeal process they elected not to follow.”); see also

Aikens, 652 F.3d at 501–02.

Defendant does not contend that the court lacked

personal or subject matter jurisdiction. Rather, he argues that

the court based its decision “on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” ECF No. 10 at 4. Additionally, defendant

“claims that the clearly established Federal Removal Statute did

not end in the 1960s, nor is it to be racially limited to Free

African-America[n] Citizens but for All Citizens seeking Equal

Protection Right under Due Process of Law, Access to Courts, and

the Right to a Jury Trial.” ECF No. 11 at 10 (emphasis in

original). Again, defendant challenges the merits of the

court’s ruling rather than asserting that remanding the case

violated his due process rights in a manner that deprived him of

“notice or the opportunity to be heard.” Espinosa, 559 U.S. at

271. “A judgment is not ‘void’ under Rule 60(b)(4) merely

because it is erroneous.” Cromer v. Kraft Foods North Am., 390

F.3d 812, 817 (4th Cir.2004). Accordingly, defendant has not

shown that Rule 60(b)(4) affords him relief.

Finally, defendant also asserts that that he is

entitled to relief under Rule 60(b)(6) (any other reason that

justifies relief) by arguing that “Extraordinary Circumstances”

exist for the court “to correct the numerous clerical mistakes,

judicial mistakes, and substantial legal errors” in the court’s

September 19, 2019 decision and that, in remanding, the court

violated clearly established federal law. See ECF No. 10 at 3;

ECF No. 11 at 5.

The United States Supreme Court has “repeatedly

instructed that only truly ‘extraordinary circumstances’ will

permit a party successfully to invoke the ‘any other reason’

clause of § 60(b).” Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 873 (1988) (citations omitted); Aikens, 652

F.3d at 501. A motion under Rule 60(b)(6) must do “more than

reiterate the existence of a meritorious defense.” Park Corp.

v. Lexington Ins. Co., 812 F.2d 894, 897 (4th Cir. 1987).

Moreover, “[i]f the reason asserted for the Rule 60(b)(6) motion

could have been addressed on appeal from the judgment,” such

motions should be denied “as merely an inappropriate substitute

for an appeal.” Aikens, 652 F.3d at 501. “It is the office of

appeal that is designed to correct perceived errors, and any

appeal is governed by an independent set of rules and time

considerations.” Id. at 502. A party’s “voluntary, deliberate,

free, [and] untrammeled choice,” not to appeal does not provide

a basis for relief under Rule 60(b)(6). Dowell, 993 F.2d at 48

(quoting Ackermann, 340 U.S. at 200).

Here, it appears defendant was aware of his right to

appeal the September 19, 2019 decision. The motion quotes 28

U.S.C § 1447(d), which provides that “[a]n order remanding a

case to the State court from which it was removed pursuant to

section 1442 or 1443 of this title shall be reviewable by appeal

or otherwise.” Id; ECF No. 10 at 6. Among other things,

defendant disputes the court’s determination that 28 U.S.C.

§ 1443 does not entitle him to removal and “demands that the

Final Order be corrected for Federal Appellate Court Review

under the Abuse of Discretion Standard for failure [to] correct

earlier mistakes.” ECF No. 11 at 4–6. Inasmuch as defendant

seeks appellate relief, Rule 60(b)(6) is not the appropriate

means of achieving that goal.

Although courts construe pro se litigants’ filings

liberally, “the ‘special judicial solicitude’ with which a

district court should view . . . pro se [filings] does not

transform the court into an advocate.” United States v. Wilson,

699 F.3d 789, 797 (4th Cir. 2012) (alterations in original)

(quoting Weller v. Dep’t of Soc. Servs. for City of Baltimore,

901 F.2d 387, 391 (4th Cir. 1990)). The instant motion for

relief from judgment offers grounds that do not justify the

relief sought.2 Accordingly, the court ORDERS that the motion

be, and it hereby is, denied.

2 Indeed, the request is so frivolous that the court is left to

wonder whether it has been filed in what would be a futile

effort to extend the time for seeking appellate relief.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

ENTER: January 28, 2020

- Be, Lo

Jo . Copenhaver, Jr.

Senior United States District Judge

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