Opinion
Case No. C-1-04-422.
March 23, 2006
This matter comes before the Court on Plaintiff Willie D. Billups' Motion for Relief from Judgment Per Fed. Civ R.60B ("Motion for Relief from Judgment") (doc. #12) and Motion for Default Judgment Fed. Civ R.55 ("Motion for Default Judgment") (doc. #13), and Defendant's Memorandum in Opposition to Plaintiff's Motion for Relief ("Defendant's Opposition") (doc. #15) and Alternative Motion for Leave to Answer Plaintiff's Complaint and/or Respond to Plaintiff's Motion for Default Judgment (doc. #16). For the reasons that follow, the Court DENIES Billups' Motion for Relief from Judgment (doc. #12), DENIES AS MOOT Billups' Motion for Default Judgment (doc. #13), and DENIES AS MOOT Defendant's Alternative Motion for Leave to Answer Plaintiff's Complaint and/or Respond to Plaintiff's Motion for Default Judgment (doc. #16).
The Court notes that doc. #15 and doc. #16 are identical. Defendant filed the document only once, but the Court's Case Administrator entered the filing again as a separate docket entry because of its multipurpose caption and dual purpose: Memorandum in Opposition to Plaintiff's Motion for Relief/Defendant's Alternative Motion for Leave to Answer Plaintiff's Complaint and/or Respond to Plaintiff's Motion for Default Judgment. (See Court's Notice of Correction.)
I. BACKGROUND
On June 21, 2004, Billups filed a Complaint (doc. #1) pursuant to the Court's diversity jurisdiction against Defendants Amerisuites and John Doe. Billups alleged that he stayed at an Amerisuites on or about June 21, 2001, and that during his stay, John Doe, one of Amerisuites' employees, entered his room and stole his attaché case, money, and other items. Billups alleged that, by its employees' actions, Amerisuites converted his property to its own use. Billups requested judgment against Defendants in the amount of $6,224.13, plus punitive damages in an amount to be determined by the Court, and reasonable attorney fees and costs.
On November 12, 2004, this Court filed an Order to Show Cause why the case should not be dismissed for Billups' failure to timely file proof of service or waiver of service as required by Federal Rule of Civil Procedure 4(m). (See doc. #4). On November 30, 2004, Billups filed a Memorandum in Response to Order to Show Cause (doc. #5) informing the Court that he now had sufficient information to serve process and asking for an extension of time to perfect service. The Court granted Billups' motion and gave him until February 15, 2005 to perfect service on Defendants. (See doc. # 8.) Billups timely served Amerisuites on February 15, 2005. (See doc. #9). Amerisuites did not timely answer or file a responsive motion as required by Federal Rule of Civil Procedure 12.
On June 20, 2005, this Court filed a Notice providing that, because Defendants had not timely filed an answer, Billups could now proceed with an application for default (doc. #10). The Court noted that, if Billups did not begin the default process within thirty days, the Court could dismiss the case for lack of prosecution. (Id.) On February 17, 2006, noting that Billups had not responded to the Court's Notice, the Court entered an Order dismissing Billups' case for lack of prosecution (doc. #11). That same day, Billups filed the instant Motion for Relief from Judgment (doc.#12) and Motion for Default Judgment (doc. #13). On February 24, 2006, Amerisuites filed a Notice of Appearance of Counsel on Behalf of Defendant Amerisuites (doc. #14), Defendant's Memorandum in Opposition to Plaintiff's Motion for Relief (doc. #15), and Defendant's Alternative Motion for Leave to Answer Plaintiff's Complaint and/or Respond to Plaintiff's Motion for Default Judgment (doc. #16).
II. ANALYSIS
A. Motion for Relief from Judgment
Billups moves pursuant to Federal Rule of Civil Procedure 60(b) for relief from the Court's judgment dismissing the case for want of prosecution. Rule 60(b) authorizes a Court to grant a party relief from judgment, upon terms that are just, for the following reasons: "(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 no 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).
Billups has not specified under which section of Rule 60(b) he moves for relief from judgment. In his Motion for Relief from Judgment, Billups explains that he did not file a motion for default judgment because he was trying to settle with Zurich Insurance, whom the Court infers is Amerisuites' insurer. Billups argues further that to avoid injustice, relief from judgment is necessary. The Court construes Billups' Motion as based on either excusable neglect under Rule 60(b)(1), or "any other reason justifying relief" under Rule 60(b)(6). Amerisuites argues that Billups has not established excusable neglect or any other ground for relief under Federal Rule 60(b). (Doc. #15.) The Court agrees with Amerisuites.
In considering a motion for relief from judgment following a court's entry of judgment for the plaintiff's failure to prosecute, a court must consider whether 1) culpable conduct of the plaintiff led to the order of dismissal; and 2) the defendant will be prejudiced. See Buck v. United States Dept. of Agriculture, Farmers Home Admin., 960 F.2d 603, 607-08 (6th Cir. 1992) (distinguishing factors considered under Rule 60(b) motion for relief from default judgment from those considered under Rule 60(b) motion for relief from order dismissing for want of prosecution). There is no evidence that Amerisuites engaged in any culpable conduct, let alone culpable conduct leading to the Order of dismissal. Rather, it was undoubtedly Billups' counsel's neglect that caused this Court to dismiss this case, and the Court does not find such neglect excusable.
While "the Supreme Court has clearly held that a district court may dismiss a case for failure to prosecute," the Sixth Circuit "has been extremely reluctant to uphold the dismissal of a case . . . merely to discipline an errant attorney." Id. at 608 (emphasis added). The Sixth Circuit has held that "[t]he dismissal of an action for an attorney's failure to comply [with a court's order] is a harsh sanction which the court should order only in extreme situations showing 'a clear record of delay or contumacious conduct by plaintiff.'" Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980). This is just such a case. This is "not a case where the district court immediately dismissed a case for failure to comply with a single court order." Buck, 960 F.2d at 608. Rather, the docket reveals that Billups entirely failed to pursue his case until prompted by the Court. First, the Court filed a Show Cause Order when Billups failed to timely serve Defendants. After finally serving Defendants, and until he filed the instant motions, Billups took no further action for an entire year. The Court entered its Order dismissing the case for want of prosecution only after filing its Notice informing Billups of that consequence if he failed to proceed. And then, the Court gave Billups almost eight months from the date of that Notice — without Billups' responding in any way — before it ordered dismissal of the case. Thus, this Court's dismissal was proper.
However, this Court is mindful that "diligent, timely efforts to have a case reinstated have often led [courts] to reverse dismissals." Id. Here, on the very same day the Court entered its dismissal, Billups' counsel filed the instant motions. That factor weighs in favor of granting Billups' Motion for Relief from Judgment. Other factors, however, weigh more heavily against granting Billups' Motion for Relief from Judgment. First, it appears that Billups is attempting to correct his deliberate decision to focus on a potential settlement with Defendant's insurer instead of filing for a default judgment. Billups may not "use a Rule 60(b) motion . . . as a technique to avoid the consequences of decisions deliberately made yet later revealed to be unwise." Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 293 (6th Cir. 1988). Second, Billups has not provided evidence supporting relief under Rule 60(b)(1) for excusable neglect. And relief under Rule 60(b)(6) is warranted only in "exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule." Billups has not alleged any such circumstances that justify either his failure to prosecute or granting his Motion for Relief from Judgment. Id. at 294.
Finally, and most significantly, Billups' initial complaint did not establish diversity jurisdiction because it did not plead an amount in controversy of more than $75,000, exclusive of interest or costs, as required by 28 U.S.C. § 1332. "It is well settled . . . that a complaint is 'fatally defective,' as far as diversity jurisdiction is concerned, unless the complaint 'contains a proper allegation of the amount in controversy.'" When a plaintiff has alleged an amount in controversy of more than $75,000 that is based in part on punitive damages, those punitive damages are appropriately included when determining whether the requisite jurisdictional amount is actually in controversy. Wood v. Stark Tri-County Bldg. Trades Council, 473 F.2d 272, 274 (6th Cir. 1973). Here, however, Billups did not claim that the amount in controversy was $75,000 or more. Billups' claim for $6,224.13 plus an unspecified amount of punitive damages is not a "'a proper allegation of the amount in controversy.'" See Dulin v. Trans Union Credit Info. Co., No. 90-6209, 1991 WL 100584, at *2 (6th Cir. June 11, 1991) (emphasis added). Consequently, if this Court were to grant Billups' Motion for Relief from Judgment, it would then have to sua sponte dismiss this case for lack of subject matter jurisdiction. See id. (vacating district court's judgment for lack of jurisdiction where plaintiff alleged actual damages of $4000 plus punitive damages in an amount to be determined by the trier of fact). Therefore, there is no prejudice to Billups from denying his Motion for Relief from Judgment. See Buck, 960 F.2d at 609-10 (finding no prejudice to plaintiff for denial of his Rule 60(b) motion for relief from court's dismissal for want of prosecution where court would later have to dismiss case for lack of subject matter jurisdiction or failure to state a claim). In sum, there is no injustice to Billups by upholding the dismissal of this case. There would, however, be prejudice to Defendants by reinstating a case that should not have been before this Court in the first place.
The Court therefore DENIES Billups' Motion for Relief from Judgment (doc. #12), and DENIES AS MOOT Billups' Motion for a Default Judgment (doc. #13). The Court also DENIES AS MOOT Defendant's Alternative Motion for Leave to Answer Plaintiff's Complaint and/or Respond to Plaintiff's Motion for Default Judgment (doc. #16).
III. CONCLUSION
For the foregoing reasons, the Court DENIES Billups' Motion for Relief from Judgment (doc. #12), DENIES AS MOOT Billups' Motion for Default Judgment (doc. #13), and DENIES AS MOOT Defendant's Alternative Motion for Leave to Answer Plaintiff's Complaint and/or Respond to Plaintiff's Motion for Default Judgment (doc. #16). This case is hereby ORDERED to remain closed.
IT IS SO ORDERED.