Brewer v. United States

In the United States Court of Federal Claims

No. 19-284T

(Filed: June 9, 2021)

NOT FOR PUBLICATION

)

SHIRLEY BREWER )

d/b/a EMERALD )

GROUP/INDUSTRIAL SUPPLIES ) Motion to Alter or Amend Judgment;

LLC, ) Motion to Reconsider; Motion for

) Relief from Final Judgment; RCFC

Plaintiff, ) 59(a); RCFC 60(b).

)

v. )

)

UNITED STATES, )

)

Defendant. )

)

Shirley Brewer, Osterville, MA, pro se.

Margaret E. Sheer, Trial Attorney, with whom were Richard E. Zuckerman, Principal

Deputy Assistant Attorney General, David I. Pincus, Chief, G. Robson Stewart, Assistant

Chief, Tax Division, Court of Federal Claims Section, Department of Justice,

Washington, DC, for defendant.

OPINION

CAMPBELL-SMITH, Judge.

Presently before the court is plaintiff’s motion to vacate or amend the court’s

October 8, 2020 opinion dismissing its amended complaint with prejudice brought

pursuant to Rules 59(a)(1) and 60(b)(1), (5), and (6) of the Rules of the United States

Court of Federal Claims (RCFC). See ECF No. 29. Defendant responded on January

23, 2021. See ECF No. 31. Plaintiff did not file a reply.

Briefing is now complete and the motion is ripe for decision. The court has

considered all of the parties’ arguments and addresses the issues that are pertinent to the

court’s ruling in this opinion. For the reasons set forth below, plaintiff’s motion to

vacate or amend the court’s October 8, 2020 opinion is DENIED.

I. Background 1

On February 13, 2019, plaintiff filed a complaint in this court seeking the

reimbursement of funds plaintiff expended on energy projects that allegedly qualify for

grants pursuant to section 1603 of the American Recovery and Reinvestment Tax Act of

2009. See ECF No. 12 at 2-3 (citing the “American Recovery and Reinvestment Act of

2009, Pub. L. No. 111-5, § 1102(a)” and “Section 1603 of the Recovery Act”). The

complaint listed “Industrial Supplies LLC” as the plaintiff and was signed by “Shirley

Brewer, pro se.” See ECF No. 1 at 1, 20.

On April 15, 2019, defendant filed a motion to dismiss, arguing, among other

things, that RCFC 83.1 forbids a non-attorney like Ms. Brewer from bringing claims on

behalf of an entity and that plaintiff’s claims should accordingly be dismissed for failure

to prosecute under RCFC 41(b). See ECF No. 6 at 2, 4. On May 20, 2019, plaintiff

filed a motion to amend the complaint, stating that it had “incorrectly filed [on] behalf of

herself d/b/a/ Industrial Supplies LLC” instead of its “correct title, Shirley Brewer d/b/a

Emerald Group LLC.” ECF No. 7 at 2.

Before ruling on the motion to amend, on May 23, 2019, the court issued an order

directing plaintiff to indicate which business entity was the proper plaintiff in this case

and, if no attorney was to represent the business entity, to show cause “why Industrial

Supplies LLC and/or Emerald Group LLC should not be dismissed from this action.”

ECF No. 8 at 2. The court also noted that RCFC 83.1(a)(3) forbids non-attorneys from

representing a corporation or an entity, and directed plaintiff to “specifically address the

issue of attorney representation for Industrial Supplies LLC and/or Emerald Group LLC.”

Id. Plaintiff responded to the court’s show cause order on June 24, 2019, asserting that

the proper plaintiff to this action is “Shirley Brewer, DBA Emerald Group.” ECF No.

10 at 1.

On July 19, 2019, the court granted plaintiff’s motion to amend the complaint,

noting again that the plaintiff in this action had been inconsistently described and

cautioning that “once Ms. Brewer’s amended complaint is filed, it will supersede all of

plaintiff’s representations as to her business entities and her claims.” ECF No. 11 at 2.

Plaintiff filed the amended complaint on August 26, 2019. See ECF No. 12. The

amended complaint names “Shirley Brewer[] d/b/a Emerald Group / INDUSTRIAL

SUPPLIES, LLC” as the plaintiff, states that plaintiff “bring[s] this action, pro se,” and

describes plaintiff as “a live Delaware Corporation.” Id. at 1, 7.

1 The court described the factual background and procedural history of the case in its

October 8, 2020 opinion. See ECF No. 27 at 2-3. Accordingly, the court recounts only the

facts relevant to deciding the instant motion.

2

On October 25, 2019, defendant filed a motion to dismiss plaintiff’s amended

complaint. See ECF No. 14. Defendant again argued that plaintiff’s claims should be

dismissed for failure to prosecute under RCFC 41(b) because plaintiff, as described in the

amended complaint, is an entity that cannot be represented by a non-attorney under

RCFC 83.1(a)(3). See id. at 4-5. After briefing on defendant’s motion to dismiss

concluded, on July 21, 2020, plaintiff filed a motion for partial summary judgment “as to

expenses incurred by PLAINITFF” associated with a project that was ultimately the

subject of an application for section 1603 funds. See ECF No. 26 at 13.

On October 8, 2020, the court granted defendant’s motion to dismiss with

prejudice for failure to prosecute under RCFC 41(b) because plaintiff, Shirley Brewer

d/b/a Emerald Group/INDUSTRIAL SUPPLIES LLC, was proceeding as an

unrepresented entity in violation of RCFC 83.1(a)(3). See ECF No. 27 at 4-5. In

reaching this conclusion, the court rejected plaintiff’s argument that Ms. Brewer, as an

individual, was the appropriate plaintiff. The court noted that it had given “plaintiff a

chance to clarify the legal nature of the named plaintiff in the original complaint,” but

Ms. Brewer had “failed to do so” in her amended complaint. Id. at 4. The court further

noted that its previous order clearly directed that the representations in the amended

complaint superseded all other representations of Ms. Brewer’s business entities and

claims. See id. (citing the court’s July 19, 2019 order, ECF No. 11). Because the court

granted defendant’s motion to dismiss, it denied plaintiff’s motion for partial summary

judgment as moot. See id. at 5.

On November 9, 2020, plaintiff filed the instant motion to vacate or amend the

court’s October 8, 2020 opinion pursuant to RCFC 59(a)(1) and 60 (b)(1), (5), and (6).

See ECF No. 29. Specifically, plaintiff requests that this court reconsider or vacate its

dismissal with prejudice and restore this case to its docket, rule on plaintiff’s motion for

partial summary judgment, and afford plaintiff the opportunity to file a second amended

complaint. See id. at 12-13. Defendant opposes the motion, arguing that plaintiff’s

requests for relief pursuant to RCFC 59(a)(1) are untimely and that plaintiff has

otherwise failed to demonstrate that relief pursuant to RCFC 59(a)(1) or RCFC 60(b) is

warranted. See ECF No. 31. For the reasons stated below, the court agrees with

defendant.

II. Legal Standards

Rules 59(a) and 60(b) set forth the applicable standard for reconsideration and

relief from final judgments or orders, respectively. Rule 59(a)(1) provides that the court

may grant reconsideration in the following circumstances:

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(A) for any reason for which a new trial has heretofore been granted in an

action at law in federal court; (B) for any reason for which a rehearing has

heretofore been granted in a suit in equity in federal court; or (C) upon the

showing of satisfactory evidence, cumulative or otherwise, that any fraud,

wrong, or injustice has been done to the United States.

RCFC 59(a)(1)(A), (B), (C). “A court, in its discretion, ‘may grant a motion for

reconsideration when there has been an intervening change in the controlling law, newly

discovered evidence, or a need to correct clear factual or legal error or prevent manifest

injustice.’” Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016), cert. denied, 137

S. Ct. 389 (1996) (quoting Young v. United States, 94 Fed. Cl. 671, 674 (2010)). A

motion for reconsideration “must also be supported ‘by a showing of extraordinary

circumstances which justify relief.’” Id. (quoting Caldwell v. United States, 391 F.3d

1226, 1235 (Fed. Cir. 2004)). A motion for reconsideration under RCFC 59(a)(1)(A) or

(B), or a motion to alter or amend a judgment, must be filed no later than twenty-eight

days after the entry of the judgment. See RCFC 59(b)(1); RCFC 59(e).

Rule 60(b) permits the court to relieve a party from a final judgment or order

under certain, enumerated circumstances, which, as relevant to plaintiff’s motion,

include:

(1) mistake, inadvertence, surprise, or excusable neglect;

...

(5) the judgment has been satisfied, released, or discharged; it is based on an

earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or (6) any other reason that justifies

relief.

RCFC 60(b)(1), (5), (6). Motions invoking RCFC 60(b)(1) must be made within one

year after the entry of the judgment, and those invoking RCFC 60(b)(5) and (6) must be

brought “within a reasonable time.” RCFC 60(c). Rule 60(b) motions for relief from

final judgment are “for extraordinary relief entrusted to the discretion of the Court” and

“may be granted only in exceptional circumstances.” Sioux Tribe of Indians v. United

States, 14 Cl. Ct. 94, 101 (1987), aff’d, 862 F.2d 275 (Fed. Cir. 1988) (internal citation

omitted).

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III. Analysis

A. Plaintiff’s Requests for Relief Pursuant to RCFC 59(a)(1) Are Untimely

As an initial matter, the court concludes that plaintiff’s requests pursuant to RCFC

59(a)(1) are untimely. Rule 59 clearly provides that motions seeking reconsideration

under RCFC 59(a)(1)(A) or (B), and motions to alter or amend the judgment, must be

filed “no later than 28 days after the entry of judgment.” RCFC 59(b)(1); see also RCFC

59(e). This deadline is strictly enforced under RCFC 6(b), which provides that “[t]he

court must not extend the time to act under RCFC 52(b), 59(b), (d), and (e), and 60(b).”

RCFC 6(b)(2); see also Am. Innotek, Inc. v. United States, 129 Fed. Cl. 444, 446 (2016)

(finding motion to alter or amend the judgment filed one day after the twenty-eight-day

deadline untimely in light of the “inflexible” deadline for such motions).

Judgment in this case was entered on October 8, 2020, making any motion for

reconsideration or motion to alter or amend the judgment due by November 5, 2020.

See ECF No. 28 (judgment dismissing case with prejudice pursuant to RCFC 41(b) on

October 8, 2020). Plaintiff’s motion was not mailed until November 7, 2020, and was

not received by the court and filed in the court’s case management/electronic case filing

(CM/ECF) system until November 9, 2020. See ECF No. 29 at 223 (envelope from

plaintiff’s filing reflecting dates of mailing and receipt). Accordingly, the court

concludes that to the extent plaintiff’s requests for relief are made pursuant to RCFC

59(a)(1), those requests are untimely and must be denied.

B. Plaintiff Fails to Demonstrate Grounds for Relief Pursuant to RCFC

60(b)(1), (5), or (6)

Plaintiff also invokes RCFC 60(b)(1), (5), and (6), as grounds for relief. See ECF

No. 29 at 1. As noted above, the rule states, in pertinent part, as follows:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On

motion and just terms, the court may relieve a party or its legal representative

from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

...

(5) the judgment has been satisfied, released, or discharged; it is based on an

earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or (6) any other reason that justifies

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relief.

RCFC 60(b)(1), (5), (6).

As an initial matter, RCFC 60(b)(5) is plainly inapplicable. The court’s judgment

in this case has not been “satisfied, released, or discharged,” and is not based on an

earlier reversed or vacated judgment. Plaintiff does not argue that applying the court’s

judgment prospectively would be inequitable. Accordingly, plaintiff has not identified

any reason that it is entitled to relief under RCFC 60(b)(5), and its requests for such relief

are denied.

Plaintiff has similarly failed to establish that it is entitled to relief pursuant to

RCFC 60(b)(1) or (6). As described above, plaintiff’s motion seeks reconsideration “to

correct a clear, outcome determinative, error of law in the Court’s Opinion.” ECF No.

29 at 10. Relief from “judicial error” may be granted under RCFC 60(b)(1) “when

inadvertence is shown and the motion is made within a reasonable time.” Patton v.

Sec’y of Dep’t of Health & Human Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1990).

Alternatively, relief under RCFC 60(b)(6)—the “catch-all” provision—is warranted “if

such action is appropriate to accomplish justice and only in extraordinary circumstances.”

CEATS, Inc. v. Cont’l Airlines, Inc., 755 F.3d 1356, 1361 (Fed. Cir. 2014) (internal

citations omitted). Rules 60(b)(1) and 60(b)(6) are mutually exclusive, leaving movants

unable to obtain relief from judgment premised on inadvertence and neglect under both

RCFC 60(b)(1) and 60(b)(6). See Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382

(Fed. Cir. 2002) (“Rule 60(b)(6) is available only in extraordinary circumstances and

only when the basis for relief does not fall within any of the other subsections of Rule

60(b).”).

Plaintiff has failed to establish judicial error—or any other “mistake, inadvertence,

surprise, or excusable neglect”—to justify relief under RCFC 60(b)(1), or “extraordinary

circumstances” that justify relief under RCFC 60(b)(6). First, plaintiff’s argument that

the court erred by not giving plaintiff the “opportunity” to acquire counsel, ECF No. 29 at

5, is unavailing. Plaintiff had ample notice that it needed counsel to pursue its claims

and had every opportunity to acquire counsel in the twenty months between filing the

complaint and dismissal. 2 See ECF No. 6 at 4 (defendant’s first motion to dismiss,

arguing for dismissal for failure to prosecute pursuant to RCFC 41(b) as plaintiff is an

2 Plaintiff directs the court to North American Landscaping Construction & Dredge Inc. v.

United States, 147 Fed. Cl. 817 (2020), arguing that the court allegedly gave plaintiff “the option

to acquire counsel” and repeated opportunities to amend its complaint. ECF No. 29 at 5. But

this caselaw does not address any issues related to the corporate plaintiff’s representation by

counsel or requests for leave to amend its complaint and is accordingly inapplicable here.

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unrepresented entity); ECF No. 8 at 2 (order to show cause, noting that “[p]ursuant to

RCFC 83.1(a)(3) pro se plaintiffs may not represent a corporation, or any other business

entity, before this court. The entity must obtain representation by an attorney qualified

to practice before this court.”). Plaintiff’s failure to retain counsel is its own error, not

the court’s, and does not justify relief under RCFC 60(b).

Plaintiff’s argument that the court erred by not granting plaintiff leave to file a

second amended complaint is similarly unavailing. Plaintiff did not file a motion

seeking leave to file a second amended complaint, as it must in order to do so. 3 See

RCFC 15(a)(2) (providing that, after a response to the complaint has been filed, “a party

may amend its pleading only with the opposing party’s written consent or the court’s

leave”). Plaintiff is aware of this requirement, having filed a motion to amend its

complaint on May 20, 2019, which this court ultimately granted, that cites RCFC 15(a)(2)

in support. See ECF No. 7 at 1. Accordingly, like its failure to timely acquire counsel,

plaintiff’s failure to seek leave to amend the complaint a second time before the court

dismissed the action is plaintiff’s error, not the court’s, and does not justify relief under

RCFC 60(b).

Plaintiff’s argument that the court erred when it determined that plaintiff is an

entity, not an individual, must also be rejected. Specifically, plaintiff argues that Ms.

Brewer, not Industrial Supplies, LLC, supplied materials for the projects for which

section 1603 grants were sought. See ECF No. 29 at 5. Ms. Brewer raised a nearly

identical argument during briefing on defendant’s motion to dismiss, positing that she

suffered “substantial personal monetary losses” for the sake of the projects and was

accordingly the proper plaintiff. ECF No. 19 at 5. The court specifically rejected this

argument in its October 8, 2020 opinion. See ECF No. 27 at 4 (rejecting plaintiff’s

argument “that she as an individual is the appropriate plaintiff” in this case). It is well-

settled that “[a] motion under [RCFC] 60 is not available simply to relitigate a case—it is

an avenue to secure ‘extraordinary relief . . . which may be granted only in exceptional

circumstances.’” Wagstaff v. United States, 595 F. App’x 975, 978 (Fed. Cir. 2014)

3 Plaintiff claims that it sought leave to amend its complaint on multiple dates, referring the

court to its briefs opposing the government’s motion to dismiss and its motion for summary

judgment. See ECF No. 29 at 9. But, in those filings, plaintiff states only its intent to draft and

file a second amended complaint; it does not seek leave to file it or attach proposed amendments

for the court’s consideration. See ECF No. 19 at 12 (stating that plaintiff is “in the process of

drafting” a second amended complaint, which it planned to file by the end of May 2020); ECF

No. 23 at 9 (stating that plaintiff intends to file a second amended complaint to “further clarify

Ms. Brewer’s position as well as to remove the typographical, technical or other mistaken error

related to any artificial entity’s participation or as in this case lack thereof”).

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(quoting Sioux, 14 Cl. Ct. at 101)). Disagreement with the court’s conclusion that Ms.

Brewer as an individual is not the plaintiff in this case does not satisfy this standard.

Plaintiff makes several additional arguments, none of which justify relief under

RCFC 60(b). First, plaintiff spends a significant portion of its motion explaining why

jurisdiction in this court is proper, and even asks that this court “reconsider its holding

that it lacks jurisdiction over Ms. Brewer’s complaint.” See ECF No. 29 at 8; see also

id. at 10 (“Where MS. BREWER’s position sharply diverges with the Government’s,

however, is on the question whether the Tucker Act provides jurisdiction over this case

and directly supports MS. BREWER’s position.”). Because the court did not conclude

that it lacks jurisdiction over the amended complaint, this argument is unfounded.

Second, plaintiff points to RCFC 41(a)(2) to argue that the court should have dismissed

the amended complaint without prejudice. See ECF No. 29 at 10-11. Rule 41(a)(2)

applies to voluntary dismissals. Because plaintiff clearly does not seek to have this

action voluntarily dismissed, RCFC 41(a)(2) is inapplicable. And finally, plaintiff

argues that the court erred when it “omitted several facts and ignored clear circuit

precedent and ‘law of the case’ doctrine” in its October 8, 2020 opinion. ECF No. 29 at

6. Plaintiff, however, does not identify the allegedly omitted facts or precedent and does

not explain how the “law of the case” doctrine applies to this case. This conclusory

statement, standing alone, does not demonstrate “extraordinary circumstances” that

warrant relief.

Accordingly, plaintiff has not demonstrated that relief under RCFC 60(b) is

warranted.

IV. Conclusion

Plaintiff’s motion to vacate or amend the October 8, 2020 opinion dismissing this

action with prejudice, and denying plaintiffs’ motion for partial summary judgment as

moot, ECF No. 29, is DENIED.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge

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