Smith v. Flock Safety

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL SMITH, )

) CASE NO. 5:23-CV-2198

Plaintiff, )

)

v. ) JUDGE BENITA Y. PEARSON

)

FLOCK SAFETY )

) MEMORANDUM OF OPINION AND

Defendant. ) ORDER

) [Resolving ECF Nos. 40, 41]

Pending before the Court is pro se Plaintiff Michael Smith’s Motion to Alter or Amend

Judgment (ECF No. 40), and Motion to Recuse (ECF No. 41). The matters are fully briefed.

The Court has been advised, having reviewed the record, the parties’ briefs, and the applicable

law. For the reasons below, both motions are denied.

I. Background

The Court entered a Memorandum of Opinion and Order granting Defendant’s Motion to

Dismiss Plaintiff’s Second Amended Complaint. See 4/15/24 Memorandum of Opinion and

Order (ECF No. 38). Judgment was entered the following day. See Judgment Entry (ECF No.

39). Ultimately, the Court determined that Defendant was not a state actor against whom

Plaintiff could bring 42 U.S.C. § 1983 claims; Plaintiff had not plausibly alleged a violation of a

constitutional right; and that Plaintiff’s product liability claims and common law tort claims were

without merit.

Plaintiff moves for reconsideration, arguing that the Court erred. Plaintiff argues the

Court made a clearly erroneous finding that Defendant was not a state actor. ECF No. 40 at

PageID #: 1026. As for Plaintiff’s product liability claims, Plaintiff argues the Court may have

erred in its application of Ohio’s product liability statutes because Defendant “disseminated false

information about the Plaintiff without verifying and making sure the information contained was

actually true.” ECF No. 40 at PageID #: 1028. Plaintiff also argues that Defendant had a duty to

warn Plaintiff because Plaintiff “was a user of the product; he took advantage of the picture-

capturing capabilities when he drove by willingly by the camera, which was in clear sight, on a

black pole.”1 See Reply in Supp. Of Mot. To Alter/Amend J. (ECF No. 44) at PageID #: 1273.

Plaintiff alternatively provides that if the Court does not find him to be a “user,” he should be

considered an incidental user and/or bystander. ECF No. 44 at PageID #: 1273. Plaintiff also

repeats arguments about his negligence and defamation claims. ECF No. 40 at PageID #: 1028.

Plaintiff rehashes his unjust enrichment and misappropriation claims. ECF No. 44 at PageID #:

1273-1275. Plaintiff then also argues that the Court cannot rely on materials from outside the

pleadings (ECF No. 44 at PageID #: 1269), and that the Court “cites one case law, which has

since been overruled in one part of another.” ECF No. 44 at PageID #: 1268.

Defendant responds that Plaintiff’s Motion “is nothing more than an improper attempt to

re-litigate issues that were fully addressed in the Court’s dismissal order.” See Resp. in Opp’n to

Mot. To Alter or Amend J. (ECF No. 42) at PageID #: 1259. Defendant also retorts Plaintiff

1 Plaintiff sets forth additional arguments in his Reply that were not included in the

original motion. Generally, a party cannot raise new issues for the first time in a reply brief

because consideration of such issues deprives the non-moving party an opportunity to

address the new arguments. Murray v. City of Elizabethton, Tennessee, 661 F. Supp. 3d

786, 804 (E.D. Tenn. 2023).

alleges he has newly discovered evidence that could impact the Court’s analysis, but Plaintiff

provides no information about the alleged “new evidence.” ECF No. 42 at PageID #: 1260-61.

Finally, Defendant intones that even if Plaintiff had new evidence to better support the assertion

that it could be considered a state actor, “such evidence would have no impact on the Court’s

decision to dismiss [Plaintiff’s] Section 1983 claim. . . [Plaintiff’s] Motion ignores entirely the

portion of the Court’s order holding that [Plaintiff] failed to allege facts supporting a plausible

claim that [Defendant] violated any of his constitutional rights.” ECF No. 42 at PageID #: 1261.

In his second motion, Plaintiff calls for the Court’s recusal, alleging serious concerns

about the Court’s adherence to due process and judicial impartiality towards pro se plaintiffs,

and accusing the Court of having giving deference to Defendant’s words. ECF No. 41 at PageID

#: 1034-36. In a desperate salvo, Plaintiff compares his case to the mass tort litigation resulting

from the catastrophic train derailment in East Palestine, Ohio, arguing the length of the orders in

the cases are drastically different.2 ECF No. 41 at PageID #: 1040-43. In opposition, Defendant

recounts the measures undertaken by the Court and retorts that Plaintiff’s allegations lack any

basis in fact or law. Defendant concludes that, even with his positions liberally construed, there

was no disparity in the judicial treatment of the parties, and that the Court’s certification pursuant

to 28 U.S.C. § 1915(a)(3) was proper, “give that [Plaintiff’s] proposed action [was] wholly

without merit and [would] be futile.” See Response in Opp’n to Mot. To Recuse (ECF No. 43).

2 Plaintiff’s refers to In re: East Palestine Train Derailment, Case No. 4:23-CV-

242.

II.

Legal Standard

A. Fed. R. Civ. P. 59(e)

Fed. R. Civ. P. 59(e) provides “[a] motion to alter or amend a judgment must be filed no

later than 28 days after the entry of the judgment.” Generally, when a party files a “motion to

reconsider” a final order or judgment within 28 days of its entry, the motion is to be construed as

a motion to alter or amend judgment pursuant to Rule 59(e). See, e.g., Inge v. Rock Fin. Corp.,

281 F.3d 613, 617 (6th Cir. 2002).

“Under Rule 59, a court may alter the judgment based on: ‘(1) a clear error of law; (2)

newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent

manifest injustice.’” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th

Cir. 2010) (citation omitted). “The purpose of Rule 59(e) is ‘to allow the district court to correct

its own errors, sparing the parties and appellate courts the burden of unnecessary appellate

proceedings.’” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (citation omitted). A

motion to alter or amend a judgment is “extraordinary and is seldom granted because it

contradicts notions of finality and repose.” Amin v. Konteh, No. 3:05CV2303, 2008 WL

5111091, at *2 (N.D. Ohio Dec. 1, 2008). “A plaintiff cannot use a Rule 59 motion . . . ‘to raise

arguments which could, and should, have been made before judgment issued.’” Leisure, 616

F.3d at 616 (citation omitted).

B. Recusal

A judge shall disqualify herself from a case if her “impartiality might reasonably be

questioned” or she “has a personal bias or prejudice concerning a party, or personal knowledge

of disputed evidentiary facts concerning the proceedings . . .” 28 U.S.C. §§ 455(a), (b)(1). This

statute imposes an objective standard that examines whether “a reasonable person with

knowledge of all the facts would conclude that the judge’s impartiality might reasonably be

questioned.” Burley v. Gagacki, 834 F.3d 606, 616 (6th Cir. 2016) (citing United States v.

Adams, 722 F.3d 788, 837 (6th Cir. 2013)). “[T]he question is whether, given the facts, an

objective reasonable person perceives a significant risk that the judge will resolve the case on a

basis other than the merits.” Garrett v. Ohio State Univ., 60 F.4th 359, 369 (6th Cir. 2023)

Judges are presumed to be impartial, and the “substantial burden” to prove otherwise is on the

party seeking the judge’s recusal. Scott v. Metro. Health Corp., 234 F. App'x 341, 352 (6th Cir.

2007).

Prejudice or bias means “a favorable or unfavorable disposition or opinion that is

somehow wrongful or inappropriate, either because it rests upon knowledge that the subject

ought not possess . . ., or because it is excessive in degree . . .” Id. (citing Williams v. Anderson,

460 F.3d 789, 814 (6th Cir. 2006)). Allegations of bias “must be a personal bias as distinguished

from a judicial one, arising out of the judge’s background and association and not from the

judge’s view of the law.” United States v. White, 582 F. Supp. 3d 525, 535 (E.D. Mich. 2022)

(citing Easley v. Univ. of Mich. Bd. Of Regents, 853 F.2d 1351, 1355-56 (6th Cir. 1988)). As a

practical matter, the only basis for establishing bias or prejudice is an “extrajudicial source.”

United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000). Put differently, proving personal

bias requires a showing of “some source other than participation in the proceedings or prior

contact with related cases.” Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003).

III.

Analysis

A. Plaintiff’s Motion to Alter or Amend Judgment

Plaintiff provides no reason for the Court to alter or amend its ruling. Rather, Plaintiff’s

motion improperly reargues his Complaint.

A Rule 59(e) motion does not permit “an opportunity to re-argue a case”, or “simply

reassert old arguments.” (first quoting Sault Ste. Marie Tribe of Chippewa Indians v. Engler,

146 F.3d 367, 374 (6th Cir. 1998), then quoting Beasley v. United States, No. 24-5092, 2024 WL

5400265, *2 (6th Cir. Aug. 16, 2024)). As stated on the web page of the undersigned,

parties should not be free to relitigate issues a court has already

decided. Therefore, motions to alter or amend a judgment or for

reconsideration should not be filed as a matter of routine. “Filing a

motion to reconsider should not be a ‘Pavlovian Response’ to an

adverse ruling.” Jefferson v. Security Pac. Fin. Services, Inc., 162

F.R.D. 123, 125 (N.D. Ill. 1995).

Personal Preferences, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO,

https://www.ohnd.uscourts.gov/judge-pearsons-personal-preferences. Plaintiff, for example,

argues that the Court erred in dismissing his 42 U.S.C. § 1983 claim, because the Second

Amended Complaint containing “over 100 pages (over 300 with the exhibits)” alleges

“Defendants actions (using government buildings, writing PR statements, writing laws for city

councils, writing social media posts)”. ECF No. 40 at PageID #: 1026-27. This argument re-

asserts the same arguments Plaintiff raised in his opposition to the motion to dismiss. See Pl.’s

Opp’n to Flock’s Mot. To Dismiss (ECF No. 32) at PageID #: 959-961.3

3 To the extent Plaintiff suggests that his Complaint should have survived dismissal

because its “over 100 pages (over 300 with the exhibits)”, that argument also lacks merit.

The Court is not obligated to mine the entire record for some specific facts that might

The Court’s ruling speaks for itself. Plaintiff fails to demonstrate a clear error of law, an

intervening change in the law, newly discovered evidence, or a manifest injustice. And “[w]hile

the outcome is adverse to Plaintiff, [the judgment in favor of Defendant Flock Safety] was not

based either legally or factually on a ‘fundamental flaw . . . that without correction would lead to

a result that is both inequitable and not in line with applicable policy.’” Clark v. Kasich, No.

4:16CV2430, 2018 WL 692071, at *3 (N.D. Ohio Feb. 2, 2018) (Pearson, J.) (quoting McDaniel

v. Am. Gen. Fin. Servs., Inc., No. 04-2667 B, 2007 WL 2084277, at *2 (W.D. Tenn. July 17,

2007)). Plaintiff has presented no justification for a different result.

The Court is not persuaded by Plaintiff’s contention that the Court erred by considering

materials outside the record. On a motion made under Rule 12(b)(6), the Court’s inquiry is

generally limited to the content of the complaint, “[h]owever, the court may, in undertaking a

12(b)(6) analysis, take judicial notice of ‘matters of public record, orders, items appearing in the

record of the case, and exhibits attached to the complaint.’” Elec. Merch. Sys. LLC v. Gaal, 58

F.4th 877, 883-84 (6th Cir. 2023) (citation omitted) (finding that it was not improper for the

district court to consider the filing without converting the motion to dismiss into a motion for

summary judgment). Accordingly, the Court appropriately considered public records that

Plaintiff had attached and relied on in his own case. See Second Amended Complaint, Smith v.

Haddadin, No. 5:23 CV 1171 (N.D. Ohio Nov. 28, 2023).

The Court is also not persuaded that it improperly relied on “bad case law” by citing

Parratt v. Taylor, 451 U.S. 527 (1981). ECF No. 44 at PageID #: 1268. The Court cites Parratt

support the Plaintiff’s claim. See Parks v. Fed. Exp. Corp., 1 F. App'x 273, 277 (6th Cir.

2001) (holding that “[t]he district court was not required to examine the record to support

Plaintiffs' case” after Plaintiff identified no factual allegations establishing why dismissal

was improper) (citing InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989))

to establish the standard for a prima facie case under 42 U.S.C. § 1983, that a plaintiff must

allege that a person acting under color of state law deprived him of rights, privileges, or

immunities secured by the Constitution or laws of the United States. 451 U.S. at 535. The case

Plaintiff cites Daniels v. Williams which overrules Parratt on an unrelated point. 474 U.S. 327,

330 (1986) (overruling to the extent Parrat holds that an injury caused by negligence is a

deprivation within the meaning of the Due Process Clause). The Court did not cite “bad case

law,” as additionally evidenced by Sixth Circuit opinions citing to Parratt after Daniels. See

Cairelli v. Vakilian, 80 F. App’x 979, 983 (6th Cir. 2003); King v. City of Eastpointe, 86 F.

App’x 790, 801 (6th Cir. 2003).

B. Motion to Recuse

Plaintiff argues that, as a pro se litigant, the Court subjected him to a dismissive

approach. ECF No. 41 at PageID #: 1034. Plaintiff, for example complains that the Court

instructed defense counsel to contact Plaintiff when the date of the Case Management

Conference changed. ECF No. 41 at PageID #: 1034. As Defendant explains, “not only is this [a

represented party notifying a pro se party] standard practice in any case involving a pro se party

that is not registered to receive ECF notifications, it directly contradicts [Plaintiff]’s claim of

unfair treatment.” ECF No. 42 at PageID #: 1264.

Plaintiff’s call for recusal for personal bias or prejudice fails as a matter of law.

Plaintiff did follow the procedural requirements under 28 U.S.C. § 144, which requires a

filing of an affidavit and certificate of good faith. See Youn v. Track, Inc., 324 F.3d 409,

423 (6th Cir. 2003) (denying plaintiffs motion for recusal that set forth allegations of bias

or prejudice without an affidavit, because “[r]ecusal is never granted without the

affidavit.”) (citation omitted). Plaintiff’s call for recusal also does not meet the

circumstances for bias or prejudice outlined under 28 U.S.C. § 455.

More to the point, the Court could not communicate expediently with Plaintiff because

there was no email address or cell number registered on the docket for Plaintiff, so the Court

employed a standard practice of instructing defense counsel to notify Plaintiff of a change in

time and date so that Plaintiff would be privy to all the information defense counsel received

electronically. Plaintiff’s contortion of this courtesy is without merit. The Court did not treat

Plaintiff unfairly or with bias at any time.

Plaintiff claims that there are “serious concerns about the Court’s adherence to due

process and judicial impartiality” because “the Court did not appear to consider certain well-

established case law.” ECF No. 41 at PageID #: 1035. This argument does not meet any

standard set by 28 U.S.C. § 455. “[J]udicial rulings alone almost never constitute a valid basis

for a bias or partiality motion.” Litecky v. United States, 510 U.S. 540, 555 (1994) (finding that a

court’s ruling does not provide grounds for recusal unless those rulings “display a deep-seated

favoritism or antagonism that would make fair judgment impossible.”). Plaintiff’s attacks are

without merit.

Plaintiff ‘s argument that there is a “stark contrast in the treatment of Plaintiff’s pro se

complaint” compared to the Plaintiffs in the train derailment case fails to apprehend the inherent

authority of a court to manage its docket. ECF No. 41 at PageID #: 1041. District courts may

direct proceedings efficiently for the benefit of all involved in litigation. Gray v. Bush, 628 F.3d

779, 785 (6th Cir. 2010). The Supreme Court has also recognized a district court’s “inherent

power” to manage its own affairs to achieve the orderly and expeditious disposition of cases.

Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962). It is within the Court’s power and

discretion to effectively manage cases. The Court gives each case the time and attention each

requires. Plaintiff’s case is no exception.

Finally, Plaintiff complains of the Court’s certification under 28 U.S.C. § 1915(a)(3), that

an appeal from its Order dismissing his case (ECF No. 38) could not be taken in good faith, and

suggests that ruling “merits scrutiny as it potentially violates the Due Process Clause as the

Judge took the Plaintiff’s away a right [sic] to proceed in forma pauperis at the Appeal Court.”

ECF No. 41 at PageID #: 1038. Plaintiff also contends that the Certification is prejudicial and

unwarranted (ECF No. 41 at PageID #: 1038), and insists that the Court should provide a detailed

analysis warranting the Certification. Id.

The Court dismissed Plaintiff’s Second Amended Complaint because the claims lacked

merit. As Defendant responded, “it is a court’s duty to certify that an appeal cannot be taken in

good faith “where it is clear that the proposed action is wholly without merit and will be futile.”

U.S. v. Lott, 171 F. Supp. 178, 180 (W.D. Ky. 1959).

IV. Conclusion

For the reasons above, Plaintiff’s Motion to Amend or Alter the Judgment (ECF No. 40)

and Motion to Recuse (ECF No. 41) are denied. The Court certifies pursuant to 28 U.S.C. §

1915(a)(3) that an appeal from this decision could not be taken in good faith.

IT IS SO ORDERED.

March 20, 2025 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge