Opposition Brief — Harris v. City of Chattanooga, Tennessee (No. 05-863)

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1. THE SIXTH CIRCUIT COURT OF APPEALS DID

NOT EXERCISE ITS SUPERVISORY POWER IN A

WAY THAT CONFLICTED WITH PETITIONER’S

RIGHT OF DUE PROCESS BY DENYING

PETITIONER’S STATUTORY RIGHT TO APPEAL

AND/OR ARBITRARILY APPLYING ITS WAIVER

RULE AND EXCEPTIONS.

A. The Waiver Rule at issue:

At issue here is a rule, adopted by the Sixth Circuit in

United States v. Walters, 638 F.2d 947 (6" Cir. 1981), and

approved by this Court in Thomas v. Arn, which conditioned

appeal upon a party filing objections to a magistrate’s report

within ten (10) days as provided for in 28 U.S.C. § 636(b)(1).

In United States v. Walters, the Sixth Circuit approved the

waiver of a right to appeal and clearly held as follows:

The permissive language of 28 U.S.C. § 636 [28

USCS § 636] suggests that a party’s failure to file

objections is not a waiver of appellate review.

However, the fundamental congressional policy

underlying the Magistrate’s Act - to improve access to

the federal courts and aid the efficient administration

of justice — is best served by our holding that a party

shall file objections with the district court or else

waive right to appeal. Additionally, through the

exercise Of Our supervisory power, we hold that a

party shall be informed by the magistrate that

objections must be filed within ten days or further

appeal is waived.

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638 F.2d at 949-950 (footnote and citations omitted). This

express ruling by the Sixth Circuit was later affirmed in

Thomas v. Arn, 474 U.S. at 145.

The hearing on various motions to enforce the settlement

agreement was held before the Magistrate Judge on February

3, 2004. At the hearing, Tonya Harris was represented by

Attorney Robin Flores. Tonya Harris provided testimony

concerning her understanding of the terms of the settlement

agreement and Attorney Flores stipulated that the only

settlement offer from the City of Chattanooga was $28,500.00

which was communicated to his client. The Report and

Recommendation of the Magistrate Judge was filed in the

United States District Court on February 11, 2004. Footnote

2 of the Magistrate Judge’s Report and Recommendation

states:

Any objection to this Report and Recommendation

must be served and filed within ten (10) days after

service of a copy of this recommended disposition on

the objecting party. Such objections must conform to

the requirements of Rule 72(b) of the Federal Rules of

Civil Procedure. Failure to file objections within the

time specified waives the right to appeal the District

Court’s Order. Thomas v. Arn, 474 U.S. 140, 88

L.Ed.2d 435, 106 S. Ct. 466 (1985). The District

Court need not provide de novo review where

objections to this Report and Recommendation are

frivolous, collusive or general. Mira v. Marshall, 806

F.2d 636 (6" Cir. 1986). Only specific objections are

reserved for appellate review. Smith v. Detroit

Federation of Teachers, 829 F.2d 1370 (6" Cir. 1987).

No objection to the Report and Recommendation was

timely filed and on March 3, 2004, United States District

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Judge entered an Order accepting and adopting the Magistrate

Judge’s findings of fact, conclusions of law, and

recommendations pursuant to 28 U.S.C. § 636(b)(1) and Rule

72(b) of the Federal Rules of Civil Procedure.

From the beginning of this suit through Attorney Flores’

withdrawal of the case on April 8, 2004, Tonya Harris was

represented by Attorney Robin Flores. In a subsequent letter

dated March 23, 2004, from Tonya Harris to Judge Curtis

Collier, Appellant states that she terminated Attorney Flores

as her attorney on Friday, March 12, 2004. In that letter, Ms.

Harris requested that Judge Collier set aside the Order that

was entered on March 3, 2004 because “this alleged

settlement agreement was procured with fraud and deception

by my former attorney Robin Flores.” Upon motion,

Attorney Flores was eventually allowed to withdraw from

representation on April 8, 2004.

This Court, in the case of Thomas v. Am, clearly held that

the party shall be informed by the Magistrate that objections

must be filed within ten (10) days or further appeal is waived.

Id. at p. 470. There is no dispute in this case that the

Magistrate Judge’s Order filed on February 11, 2004 provided

clear notice to the litigants and an opportunity to file

objections timely as to the Report and Recommendation.

None of the actions taken by the Magistrate or District Judge

in this case violate either the Federal Magistrate’s Act of the

Constitution or this Court’s ruling in Thomas v. Arn.

The Petitioner, in her late filed March 23 letter, did

request that the District Judge set aside his Order Affirming

the Report and Recommendation of the Magistrate Judge

which was reviewed and appropriately considered by the

District Judge in the Order and Memorandum entered on May

14, 2004. (Appendix 1). The letter was filed well past the ten

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(10) day time limit for objections to be filed. The Petitioner’s

March 23™ letter was not treated as an objection but

appropriately treated by the District Judge and the Sixth

Circuit as a Motion to Reconsider under Rule 60 of the

Federal Rules of Civil Procedure. Both of the underlying

courts properly found no legal basis for the original dismissal

to be changed under Rule 60 following the settlement which

was accepted in this case. Thus, this petition should be denied

because of the failure to timely object and due to waiver of

issues presented for appeal.

B. Certiorari is not warranted because the District

Court has not committed “plain error.”

The Petitioner asserts that this Court in Thomas v. Arn

expressly reserved the issue of how Appellate Courts must

apply exceptions to their waiver rules. Justice Marshall, in

Thomas v. Arn, clearly found that a Court of Appeals may

adopt a rule conditioning appeal, when taken from a District

Court Judgment that adopts a Magistrate’s recommendation,

upon the filing of objections with the District Court

identifying those issues on which further review is desired.

Such a rule, at least when it incorporates clear notice to the

litigants and an opportunity to seek an extension of time for

filing objections, is a valid exercise of the supervisory power

that does not violate either the Federal Magistrate’s Act or the

Constitution. 474 U.S. at 155.

This Court, in Thomas v. Arn, found the Sixth Circuit rule

to be reasonable and found that litigants subject to the Sixth

Circuit’s rules are afforded “an opportunity. . . granted at a

meaningful time and in a meaningful manner,”. Quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965). None of the

interests in this civil case require application of Rule 52(b) of

the Federal Rules of Criminal Procedure to state that a Court

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may correct plain error despite the failure of the party to

object. To the extent that Petitioner attempts to apply the

Federal Rules of Criminal Procedure in this case, such rules

are not applicable and this case is not appropriate for

certiorari to compel the Sixth Circuit to apply other exceptions

to its waiver rules. In reviewing this case, the Sixth Circuit

clearly considered its previous authority in United States vy.

Campbell, 261 F.3d 628, 632 (6" Cir. 2001); and United

States v. Walters, 638 F.2d 947, 949-50 (6" Cir. 1981), in

addition to the Thomas v. Arn case. None of those decisions

or the approach of the Sixth Circuit in reviewing this case

establish that there is plain error in the Magistrate Judge’s

opinion or in the District Court’s interpretation of underlying

Tennessee law.

The Sixth Circuit Court of Appeals clearly reviewed

allegations by Petitioner that the Magistrate Judge did not rely

upon Tennessee law concerning whether the settlement

agreement was enforceable in this case. After reviewing the

letters and the plaintiff's own testimony, the Sixth Circuit

found “it is clear from the record that plaintiff initially gave

Flores express authority to settle the matter, and then later

reversed her position.” “By her acceptance of the offer, she

gave her attorney express authority to accept the offer on her

behalf.” (Appendix to Petition, 14a). Under Tennessee law,

where a principal gives an agent express authority to settle a

case, either orally or in writing, the principal is bound by the

acts of the agent within the scope of the authority expressly

conferred upon the agent. 3. Ry. v. Pickle, 138 Tenn. 238,

197 S.W. 675 (Tenn. 1917). The Sixth Circuit found in any

eveni, by waiting two weeks befcie notifying her attorney of

her intent to revoke her acceptance of the settlement

agreement, plaintiff ratified the settlement agreement through

her silence. (Appendix to Petition, 15a). As such, the Courts

below have not found “plain error” in the application of

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Tennessee law and the acceptance of a settlement offer in this

case. As such, there is no plain error in this record and

certiorari is not warranted on the grounds set forth at

arguments IB and II of the Petition.

C. The actions of the Sixth Circuit, in reviewing this

case, did not deny the Petitioner due process of law.

After a full review of the record, including the letters and

the transcript in this case, the Sixth Circuit found that there

was “clearly a meeting of the minds as to the essential terms

of the contract on December 18, 2003, such that a binding

contract under Tennessee law was created.” The District

Court did not err in enforcing it, and did not err in finding

there was no adequate basis for relief under Rule 60(b).” As

such, the Sixth Circuit reviewed the facts on the record and

found that there was acceptance of a written settlement offer

by the plaintiff.

Such factual findings are disregarded by the Petitioner in

her extensive arguments over waiver exceptions available

within the Sixth Circuit and whether such waiver rule and

exceptions were properly applied by the Sixth Circuit Coust

of Appeals. The lengthy waiver argument by Petitioner

maintains that its application in this case denied this Petitioner

due process of law. As a factual matter in this case, the

District Court, the Sixth Circuit and the Magistrate Judge,

have now all found as a matter of fact that the plaintiff

testified that she understood the settlement agreement but later

decided to reject it. The Magistrate Judge made a clear

finding that the Petitioner “testified at the evidentiary hearing

that she talked with her attorney three or four times before

finally agreeing to the settlement agreement with the

defendants.” (Appendix to Petition, 24a). These factual

disputes over the meetings of the mind of the parties in this

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settlement agreement are not appropriate grounds for the grant

of a certiorari pursuant to Supreme Court Rule 10(a).

D. The Sixth Circuit did not act contrary to the

precedent of this Court in weighing the evidence

presented at hearings and making factual findings

consistent with the evidence in the record.

The actions taken by the Sixth Circuit in this case did not

decide factual issues de novo. The Court of Appeals did find

that “a review of her testimony before the Magistrate reflects

that the plaintiff accepted the offer of $28,500.00 and later

reversed her acceptance.” By reviewing the information in

the record, the Sixth Circuit held that it is clear from the

record that plaintiff initially gave express authority to settle

the matter and then later reversed her position. Those factual

findings were clearly reviewed by the Sixth Circuit and the

District Court below. The application of the Sixth Circuit in

this case properly reviewed the District Court’s factual

findings under the clearly erroneous standard and reviewed

legal conclusions under a de novo review. Performance

Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373,

1381 (6" Cir. 1995).

Such action by the Sixth Circuit in this case did not

overstep the bounds of its duty under Rule 52(a) of the

Federal Rules of Civii Procedure but merely reviewed

information contained within the record concerning the factual

positions of the parties considered by the Courts below. Rule

52 clearly allows the Court of Appeals, on review of a District

Court judgment, to assume an implied finding of fact

consistent with the judgment, so long as there is evidence to

support the implied finding. See Zack v. Commissioner, 291

F.3d 407, 412 (6" Cir. 2002); and Century Marine, Inc. v.

United States, 153 F.3d 225, 231 (5" Cir. 1998). Such

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action by the Sixth Circuit in this case does not warrant

granting a petition for writ of certiorari.

E. Any split among the Circuits in applying exceptions

to waiver rules, was previously recognized in

Thomas vy. Arn.

Petitioner asserts that this Court should grant a Rule 10 for

certiorari because there is a split among the Circuits in

applying exceptions to the waiver rules enforced by those

Circuits. This Court, in Thomas v. Arn, 474 U.S. at 147,

clearly found that the Sixth Circuit’s decision to require the

filing of objections is supported by sound consideration of

judicial economy. The filing of objections to a Magistrate’s

Report enables the District Judge to focus his attention on

those issues- factual and legal- that are at the heart of the

parties’ dispute. This Court further found that the Sixth

Circuit's rule, by precluding appellate review of any issue not

contained in objections, prevents a litigant from

“sandbagging” the District Judge by failing to object and then

appealing. /d., 474 U.S. at 148. Absent such rule, any issue

before the Magistrate would be a proper subject for appellate

review. This would either force the Court of Appeals to

consider claims that were never reviewed by the District

Court, or force the District Court to review every issue in

every Case, no matter how thorough the Magistrate’s analysis,

and even if both parties were satisfied with the Magistrate’s

report.

This Court adequately considered in Thomas v. Arn, 474

U.S. at 146, fn. 4, the arguments addressed by Petitioner that

other Circuits may have adopted waiver rules which are

somewwai different. This Court previously reviewed the

waiver rules in the First, Second, Fourth, Fifth, Sixth, Ninth

and Eleventh Circuits in Jhomas v. Arm and determined that

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the power of the Courts of Appeals to mandate “procedures

deemed desirable from the viewpoint of sound judicial

practice, although in no wise commanded by statute or by the

Constitution, would occur without violation of due process of

law. /d. at 146. The application of the waiver rule of the

Sixth Circuit in this case does not part from this Court’s

previous ruling in Thomas v. Arn, and does not warrant the

granting of a petition for writ of certiorari in this case.

F. There was no arbitrary application of Sixth Circuit

waiver exceptions which would warrant any grant

of certiorari.

The petitioners assert that a conflict exists within the Sixth

Circuit in the application of the waiver provision “in the

interest of justice” between Kelley v. Withrow, 25 F.3d 363,

366 (6th Cir. 1994), cert. denied, 513 U.S. 1061 (1994), Kent

v. Johnson, 821 F.2d 1220, 1223 (6" Cir. 1987) and

Patterson v. Mintzes, 717 F.2d 284 (6" Cir. 1983). Any

conflicts of decisions within the Sixth Circuit may clearly be

resolved by the Court below and do not establish any

“compelling reason” to grant this petition under Supreme

Court Rule 10.

There is no material difference in the legal analysis used

by the Sixth Circuit in any of these cases to determine whether

to apply a waiver “in the interest of justice.” Kelley held

merely that incorporating other documents by reference might

be adequate to specify the objections to the magistrate judge’s

report and could be considered sufficient under the “interest

of justice” exception to satisfy the requirements of the rule.

Kelley cited with approval the Kent case. Id. at 366.

The Kent case accepted the plaintiff's affidavit that he had

not received a copy of the magistrate’s report mailed on June

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29, 1984 until July 10, 1984 (the 11" day). Even then the

objections were mailed on July 13, only one day late.

Additionally the District Court had entered judgment

prematurely before the ten days ran. Moreover, the Sixth

Circuit felt that the case presented questions of considerable

constitutional import. T..c Sixth Circuit properly exercised its

discretion to excuse a default in the interest of justice

(emphasis in original, 821 F.2d 1220, at 1223 citing Thomas

v. Arn).

The Patterson case was decided by the Sixth Circuit in

1983 before the holding of Thomas v. Arn; however, its

decision is not inconsistent therewith to the objection to the

Magistrate’s Report filed on the twelfth day. The Sixth

Circuit noted that the District Court had good cause to extend

the ten (10) day period of 636(b)(1) to file objections to the

Magistrate’s Report. /d. at p. 287, citing the enlargement

provisions of Rule 6(b) of the Federal Rules of Civil

Procedure.

The ruling of the Sixth Circuit in the present case is not a

departure from the accepted as usual course of judicial

proceedings which would justify an exercise of this Court’s

supervisory power under Supreme Court Rule 10.

CONCLUSION

For the reasons set forth in this response, this Court

should deny the Petition for Writ of Certiorari and affirm the

judgment of the Court of Appeals and the District Court in

this matter. The action of the Sixth Circuit below was

consistent with the holding of this Court in Thomas v. Arn and

does not merit further review.

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Respectfully submitted,

RANDALL L. NELSON, CITY ATTORNEY

CITY OF CHATTANOOGA, TENNESSEE

PHILLIP A. NOBLETT - BPR #10074

MICHAEL A. McMAHAN - BPR #0810

Counsel for Respondent

801 Broad Street, Suite 400

Chattanooga, TN 37402

(423) 757-5338

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APPENDIX I

United States District Court for the Eastern

Division of Tennessee at Chattanooga

Case No. 1:02-CV-385

[Filed May 14, 2004]

TONYA HARRIS, an administratrix of

the estate of TORRIS HARRIS,

Plaintiff

v.

THE CITY OF CHATTANOOGA, ef ai.,

Defendants

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Judge Curtis L. Collier

ORDER

For the reasons stated in the accompanying memorandum,

the Court REJECTS Defendants’ objections to Magistrate

Judge Carter’s Order of April 8, 2004 (Court File Nos. 99,

193); DENIES Plaintiff's motion for reconsideration (Court

File No. 93); DECLARES an attorney lien in favor of

Plaintiff's former counsel, Attorney Robin Ruben Flores

(Court File No. 91); GRANTS Defendants leave to deposit

with the Clerk of Court the funds subject to the disputed

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settlement agreement pending the final disposition of

Plaintiff's appeal; and GRANTS Plaintiff's application to

proceed in forma pauperis with the condition that upon being

ordered to pay any funds out to Plaintiff, the Clerk of Court

shall withhold $105 from such amount to cover the applicable

filing fees.

SO ORDERED.

ENTER:

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

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APPENDIX 2

United States District Court for the Eastern

Division of Tennessee at Chattanooga

Case No. 1:02-CV-385

[Filed May 14, 2004]

TONYA HARRIS, an administratrix of

the estate of TORRIS HARRIS,

Plaintiff,

V.

THE CITY OF CHATTANOOGA, et ai.,

Defendants.

i ee ee

MEMORANDUM

Before the Court are a variety of pending motions which

the Court will address in a single Order. Plaintiff Tonya

Harris (“Plaintiff”) has filed a motion for reconsideration of

the Court’s Order dated March 3, 2003 (Court File No. 93),

former counsel for Plaintiffhas filed a motion for declaration

of an attorney lien “ . crt File No. 91), and Defendants City

of Chattanooga an © artin Penny have filed an objection to

an Order entered & the Magistrate Judge William B. Carter

denying Defendant Charles Kinsey’s previous motion to strike

Plaintiffs motion for reconsideration (Court File No. 99)

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which Kinsey adopted (Court File No. 103). Additionally,

Plaintiff filed a notice of appeal (Court File No. 94), and an

application to proceed in forma pauperis on appeal (Court File

No. 95). Defendants Kinsey and David Allen filed responses

to Plaintiffs motion for reconsideration (Court File Nos. 101,

104) but Plaintiffhas not replied or filed responses to the other

pending motions. For the reasons set forth below, the Court

will REJECT Defendants’ objections to Magistrate Judge

Carter’s Order of April 8, 2004; DENY Plaintiff's motion for

reconsideration; DECLARE an attomey lien in favor of

Attorney Flores; and GRANT Plaintiff's application to

proceed in forma pauperis on appeal subject to certain

conditions.

I. RELEVANT FACTS

Plaintiff Tonya Harris (“Plaintiff”) brought this action on

behalf of her deceased son, Torris Harris (“Decedent”),

seeking damages pursuant to 42 U.S.C. § 1983 for

Defendants’ alleged violations of Decedent’s rights under the

Fourth, Eighth, and Fourteenth Amendments to the United

States Constitution (Court File No. 1). Through a séries of

communications in December 2003, Plaintiff's former

counsel, Robin Reuben Flores (“Attorney Flores”), reached

an agreement with counsel for the various Defendants to settle

this action and a related pending action in state court in

exchange for the sum of $28,500. However, on or before

January 1, 2004, Plaintiff decided to reject this settlement

agreement and Attorney Flores communicated his clients’

wishes to counsel for Defendants and proceeded with the

prosecution of the lawsuit. Defendants then filed various

motions to enforce the settlement agreement (Court File Nos.

68, 72, 75, 80, 83). Magistrate Judge Carter held a hearing

on the matter and issued a Report and Recommendation

(“R&R”) concluding Attorney Flores had apparent authority

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to settle the case on Plaintiff's behalf and recommending the

Court grant the Defendants’ motions (Court File No. 89).

Upon receiving no objections from the parties, the Court

adopted the R&R and closed the case on March 3, 2004

(Court File No. 90).

Thereafter, Attorney Flores filed a motion to withdraw as

counsel for Plaintiff (Court File No. 92) and a motion to

declare an attorney lien (Court File No. 91). Plaintiff then

filed a pro se motion for reconsideration of the Court’s Order

enforcing the settlement agreement (Court File No. 93), a

notice of appeal from that Order (Court t‘ile No. 94), and an

application to proceed informa pauperis on appeal (Court File

No. 95). Defendant Kinsey filed a motion to strike Plaintiff's

motion for reconsideration as ex parte and redundant (Court

File No. 96). On April 8, 2004, Magistrate Judge Carter

granted Attorney Flores’ motion to withdraw and denied

Defendant Kinsey’s motion to strike (Court File No. 98).

II. DISCUSSION

The Court will address the various pending motions in

turn, though not in chronological order.

A. Defendants’ Objections to Magistrate’s Ruling on

Motion to Strike

Defendants City of Chattanooga, Penny, and Kinsey have

objected to Magistrate Judge Carter’s ruling on Kinsey’s

motion to strike Plaintiffs pro se motion for reconsideration

by way of their own motions to .econsider (Court File Nos.

99, 103). When nondispositive matters have been referred to

and decided by a magistrate judge, a party dissatisfied with

the magistrate judge’s ruling may make objection thereto

within ten days of being served with a copy of such ruling and

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the district court “shall modify or set aside any portion of the

magistrate judge’s order found to be clearly erroneous or

contrary to law.” Fed. R. Civ. P. 72(a). Review of factual

determinations are governed by the clearly erroneous

standard. Young v. Construction Corp., 899 F. Supp. 39, 40

(D.N.H. 1995); Jochims v. lsuzu Motors, Ltd., 151 F.R.D.

338, 340 (S.D. Iowa 1993). A magistrate judge’s factual

finding is clearly erroneous when it is contrary to the clear

weight of the evidence or when it leaves the reviewing court

with a definite and firm conviction a mistake has been

committed. Young, 899 F. Supp. at 40. However, a

magistrate judge’s conclusions of law are reviewed under the

more lenient “contrary to law” standard. /d.; Jochims, 151

F.R.D at 340; Bryant v. Hilst, 136 F.R.D. 487, 488 (D. Kan.

1991). The district court is empowered to modify or set aside

any factual or legal ruling of a magistrate judge which does

not survive application of the clearly erroneous or contrary to

law standard of Rule 72(a). Young, 889 F. Supp. at 40.

On March 23, 2004, the Court received a letter from

Plaintiff asking the Court to reconsider its March 3, 2004

Order adopting the .&R and enforcing the settlement

agreement (Court File No. 93). The Court interpreted this

letter as a motion for reconsideration and instructed the Clerk

of Court to docket it as such. Kinsey filed a motion to strike

Plaintiff's letter/motion on the grounds it was an improper ex

parte communication with the Court and, in any event, was

filed more than ten days after entry of the order sought to be

reconsidered (Court File No. 96). Magistrate Judge Carter

denied Kinsey’s motion after finding, Plaintiff's motion was

not an ex parte communication because Plaintiff was

unrepresented by counsel, having terminated Attorney Flores,

and her letter indicated copies had been sent to all opposing -

counsel (Court File No. 98). Magistrate Judge Carter declined

to consider the timeliness of Plaintiff's letter/motion,

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indicating such matters would be dealt with by the Court in

ruling directly upon the motion (id.).

Defendants now objeci to Magistrate Judge Carter’s Order

on the basis of its failure to reference the notice of appeal

filed by Plaintiff and alleged failure of service upon the City

and Penny until after Kinsey filed his motion to strike (Court

File No. 99, 4 1-2). Thus, Defendants argue, Plaintiff's

letter/motion is either untimely or seeks relief which the Court

now has no jurisdiction to grant in light of Plaintiffs filing of

a notice of appeal (id. 42). The Court will deal with any and

all considerations regarding the timing of Plaintiff's

letter/motion infra in conjunction with the merits of that

motion. To the extent Defendants argue the Court lacks

juris#iction over Plaintiff's letter/motion, the Court notes

Plaintiff's notice of appeal was filed in conjunction with her

application to proceed in forma pauperis. Therefore,

Plaintiff's notice of appeal does not become effective until

either Plaintiff pays the required filing fees or the Court

grants her application for pauper status. Because neither event

has yet occurred, the Court retains jurisdiction over all

matters. Accordingly, the Court will REJECT Defendants’

objections to Magistrate Judge Carter’s denial of Kinsey's

motion to strike.

B. Plaintiff's Motion for Reconsideration

Plaintiff's motion for reconsideration asks the Court to

revisit its March 3, 2004 Order adopting the R&R and

enforcing the settlement agreement. Plaintiff alleges the

settlement agreement was “procured with fraud and

deception” by her former attorney “against [her] wishes and

without [her] approval” (Court File No. 93). Because

Plaintiff's motion was not filed within ten days of the entry of

the Court's Order granting summary judgment in favor of

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Defendant, the period during which a motion to alter or

amend under Fed. R. Civ. P. 59(e) must be filed, the Court

deems Plaintiff's motion to be a motion for relief from

judgment under Fed. R. Cir. P. 60(b). Rule 60(b) seeks to

strike a balance between the needs of justice and the policy

concerns favoring finality of judgments. Wuliger v. Cohen,

215 F.R.D. 535,537 (N.D. Ohio 2003) (citing 12 James Wm.

Moore, Moore’s Federal Practice, § 60.0212], n. 6 (3d ed.

2002)). Thus, the Court may grant relief from a final

judgment, order, or proceeding based upon:

(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

(whether heretofore denominated intrinsic or

extrinsic), 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 po longer

equitable that the judgment should have prospective

application; or (6) any other reason justifying relief

from the operation of the judgment. Fed. R. Civ. P.

60(b). Although motions under ule 60(b) are

addressed to the discretion of the Court, the Court’s

inquiry is limited to determining whether one of the

specified circumstances exists such that the plaintiff is

entitled to reopen the merits of his or her underlying

claims. See Feathers v. Chevron U.S.A., inc., 141

F.3d 264, 268 (6th Cir. 1998). A Rule 60(b) motion

is not a means by which to relitigate the case, a

substitute for an appeal, or a “technique to avoid the

consequences of decisions deliberately made yet later

revealed to be unwise.” Hepper v. Euclid Manor

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Nursing Home, Inc., 867 F.2d 291,294 (6th Cir.

1989); Mayhew v. Gusto Records, Inc., 2003 WL

21525106 at *2 (6th Cir. Jul. 2, 2003) (unpublished

opinion) (citing Mastini v. Am. Tel. & Tel. Co., 369

F.2d 378, 379 (2d Cir. 1966)).

Of the six circumstances justifying relief from judgment

under Rule 60(b), only s. .-ections (3) and (6) appear to be

invoked by Plaintiff. However, the facts of Piaintiff’s case do

not warrant relief under either provision. Plaintiff generally

alleges fraud and deceit on the part of attorney Flores, but

Rule 60(b)(3) only provides for relief on the basis of

“fraud,.., misrepresentation, or other misconduct of an

adverse party.” Because Plaintiff's attorney was not an

adverse party, Rule 60(b)(3) has no application to his alleged

actions.

Rule 60(b)(6), which allows relief for “any other reason

justifying relief,” is properly invoked only in “unusual and

extreme situations where principles of equity mandate relief.”

Ollie v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.

1990) (emphasis in original). “Courts have stressed...

60(b)(6) should be used only in exceptional or extraordinary

circumstances.., and can be used only as a residual clause in

cases which are not covered under the first five subsections of

Rule 60(b).” Pierce v. United Mine Workers of America

Welfare and Retirement Fund, 770 F.2d 449, 451 (6th Cir.

1985), cert. denied, 474 U.S. 1104, 106 S. Ct. 890, 88 L.

Ed. 2d 925 (1986). Thus, district courts may employ their

discretion “to achieve substantial justice when ‘something

more’ than one of the grounds contained im Rule 60(b)’s first

five clauses is present.” Hopper, 867 F.2d at 294.

Plaintiff's circumstances, while undoubtedly frustrating

and emotional, do not amount to the unusual or extreme

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situation contemplated by Rule 60(b)(6). Plaintiff's

contentions and representations regarding Attorney Flores’

actions and her own state of mind do not call into question

either the R&R or the Court’s previous Order enforcing the

settlement agreement. The Court entered the Order enforcing

the settlement agreement upon concurring with Magistrate

Judge Carter’s conclusion attorney Flores had apparent

authority to settle Plaintiff's case on her behalf. Whether or

not attorney Flores had actual authority to do so has no

impact on liability as between Plaintiff and the various

Defendants. At this point, Plaintiff's only recourse lies in a

separate action against attorney Flores. Accordingly, the

Court will DENY Plaintiff's motion for reconsideration.

C. Attorney Flores’ Motion to Declare Attorney Lien

in connection with his motion to withdraw as counsel for

Plaintiff, attorney Flores filed a motion to declare an attorney

lien in his favor “on any amounts in settlement or judgment

in this case pursuant to a contract of employment between

Plaintiff and [Attorney Flores] for expenses, and attorneys

fees” (Court File No. 91). Tennessee law provides “[a]ttoneys

and solicitors of record who begin a suit shall have a lien

upon the plaintiff's or complainant’s right of action from the

date of the filing of the suit.” Tenn. Code Ann. § 23-2-102.

This lien “attaches to any proceeds flowing from a judgment,

as long as the lawyer worked to secure that judgment for the

client.” Starks v. Browning, 20 S.W.3d 645, 651 (Tenn. Ct.

App. 1999). Although attorney’s fees arrangements are

contracts governed by state law, “the federal court’s interest

in fully and fairly resolving the controversies before it

requires courts to exercise supplemental jurisdiction over fee

disputes that are related to the main action.” Kalyawongsa v.

Moffett, 105 F.3d 283, 287-88 (6th Cir. 1997). Thus, under

Tennessee law, a court having jurisdiction over an action,

lib

whether state or federal, may declare the existence of an

attorney's lien. /d. at 288; Schmitt v. Smith, 118 S.W.3d 348,

351-52 (Tenn. 2003). Therefore, the Court will DEC'.ARE

attorney Flores shall hold a lien on the proceeds of the

settlement in Plaintiff's favor, but the Court takes no action

regarding the enforcement of that lien.

D. Disposition of Funds

Defendants City of Chattanooga and Penny have requested

they be permitted to deposit the settlement funds with the

Court pending the outcome of these proceedings and any

appeal which is taken by Plaintiff(Court File No. 99, 4 4).

There having been no objection to this request, the Court

GRANTS Defendants leave to deposit the $28,500 provided

for by the disputed settlement agreement with the Clerk of

Court pursuant to Rule 67.

EK. Matters Relating to Plaintiff's Appeal

The final issue to be addressed is whether Plaintiff should

be allowed to appeal the Court’s March 3, 2004 Order in

forma pauperis. Plaintiff has filed an application seeking

pauper status on appeal (Court File No. 95) which the Court

finds demonstrates she is sufficiently indigent to warrant the

waiver of fees on appeal. Accordingly, the Court will

GRANT Plaintiff's application and DIRECT the Clerk of

Court to transmit Plaintiff's appeal to the United States Court

of Appeals for the Sixth Circuit without requiring Plaintiff to

first pay the applicable fees. However, the Court notes

Plaintiff has access to a potentially significant asset in the

form of the funds from the disputed settlement agreemeiit.

Therefore, if and when the Clerk of Court is ordered to

distribute the funds from the settlement agreement to Plaintiff,

the Clerk of Court shall withhold the $105 in filing fees

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required by 28 U.S.C. §§ 1913 and 1917. In the event

Plaintiff prevails on appeal and is able to obtain a reversal of

the Court’s Order enforcing the settlement agreement, she

will not be required to pay those fees.

An Order shall enter.

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE