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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005

## Text

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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

9b

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

10b

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,

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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

12b

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0689%3A2. Public record. Not legal advice.