Fuller v. Quire, 89-5784

• Decision Date: 12 October 1990
• Docket Number: No. 89-5784,89-5784
• Citation: 916 F.2d 358
• Parties: Glen FULLER, Plaintiff-Appellee, v. Ricky L. QUIRE, Defendant, Denny Transport, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 358

916 F.2d 358

18 Fed.R.Serv.3d 82

Glen FULLER, Plaintiff-Appellee, v. Ricky L. QUIRE, Defendant, Denny Transport, Inc., Defendant-Appellant.

No. 89-5784.

United States Court of Appeals, Sixth Circuit.

Argued July 24, 1990.

Decided Oct. 12, 1990.

Bill Hodde, Madison, Tenn., for plaintiff-appellee.

Philip J. Shepherd (argued), Shepherd & Childers, Frankfort, Ky., for defendant.

James N. Cauthen (argued), Ogden, Sturgill & Welch, Louisville, Ky., for defendant-appellant.

Before KRUPANSKY and BOGGS, Circuit Judges, and JOINER, Senior District Judge. ^*

CHARLES W. JOINER, Senior District Judge.

This case involves an appeal from an order of the district court, setting aside a prior order dismissing the action for plaintiff's failure to appear at a docket call, and reinstating the case on the active docket. For the reasons stated herein, the appeal is dismissed.

The complaint in this case alleges that plaintiff, Glen Fuller, a resident of Tennessee, was operating a tractor-trailer truck on Interstate 71 in Kentucky, on October 28, 1982. Fuller alleges that Ricky L. Quire, an agent of defendant Denny Transport, Inc., also driving a tractor-trailer, negligently collided with the plaintiff, causing substantial damage to the rig and its contents, with resulting damage to his business.

The lawsuit was filed in the district court in Frankfort, Kentucky, on October 28, 1985. Charles M. Griffith, an attorney from Waverly, Tennessee, represented the plaintiff in the action. An answer was duly filed, and the case proceeded in the ordinary course. On March 12, 1987, an order was entered indicating that the case was before the court for a general review of the records, and that the case was set for a "court's docket call," on "Thursday, April 2, 1987, at 1:30 p.m., in Frankfort " (emphasis in original). As a result of the failure of plaintiff or plaintiff's counsel to appear in court on April 2, the trial judge ordered "that the matter be, and hereby is, dismissed for lack of prosecution."

On February 7, 1989, plaintiff, represented by different counsel, moved that the court set aside the order entered April 2, 1987, under Fed.R.Civ.P. 60(b)(6). Rule 60(b) states that:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding 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 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. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken....

Between the time of the filing of the complaint and the dismissal of the action, defendant had answered, the court had entered an order providing six months for discovery, a discovery status report had been filed by defendant asking for an extension of the discovery deadline, the deposition of plaintiff had been taken by the defendant, and the discovery deadline had been extended. The affidavit of plaintiff states that Griffith was given all the necessary information and documents connected with the case prior to the time the case was filed. Plaintiff states that Griffith suggested a settlement was pending, then ceased all contact with him.

Plaintiff was never notified of the docket call by Griffith, nor of the dismissal, until late in 1988. His affidavit states that every few weeks he attempted to contact Griffith, but his phone calls were not returned, and his letters did not receive responses. At times, it was represented to Fuller that his attorney was attending to his farming business. Plaintiff is a long-haul truck driver, and was only able to pursue these inquiries sporadically, when he was at home.

Plaintiff was finally able to contact Griffith by calling his home early on a Sunday morning. Griffith informed plaintiff that the lawsuit had been dismissed and there was likely nothing that could be done about it, that he was under pressure, that he was sorry the case had been dismissed, and that plaintiff should sue him. At this point, Fuller hired new local counsel to further pursue the matter. The new counsel learned of the April 2, 1987, dismissal, and moved to reopen the case under Fed.R.Civ.P. 60(b)(6). The district judge found "that the interest of justice require[d]" the granting of the motion, and reinstated the case. This appeal followed.

We must first address whether the order setting aside a judgment and reinstating the case pursuant to Fed.R.Civ.P. 60(b)(6), is an appealable order. 28 U.S.C. section 1291 provides that courts of appeal have jurisdiction to review "all final decisions of the district courts of the United States." Subsequent provisions of this chapter detail the bases for interlocutory appeals, none of which provide jurisdiction in this case. The present situation also does not present a "collateral order" for review. See Cohen v. Beneficial Life Ins. Co., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

This appeal is clearly not from a final order of the district court. It is apparent that this is merely one of the orders which the district court has made and will make in the process of reaching a decision. There is, however, a reasonably well grounded common-law exception to the final-judgment rule where the district court acts without the power to do so. Phillips v. Negley, 117 U.S. 665, 671-72, 6 S.Ct. 901, 903-04, 29 L.Ed. 1013 (1885); Stradley v. Cortez, 518 F.2d 488, 492 (3d Cir.1975); Hand v. United States, 441 F.2d 529, 530 n. 1 (5th Cir.1971); Rinieri v. News Syndicate Co., 385 F.2d 818, 821-22 (2d Cir.1967).

The argument that the district court acted without power is as follows. Rule 60(b)(1) authorizes the trial court to grant relief for "mistake, inadvertence, surprise, or excusable neglect," but limits the exercise of that power to one year. Rule 60(b)(6) permits the court to grant relief from a judgment for "any other reason justifying relief from the operation of the judgment." There is no time limit on the exercise of the court's power under Rule 60(b)(6), except that the motion for relief from the judgment must be made "within a reasonable time."

This court has held that 60(b)(6) is to be used "only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule." Hopper v. Euclid Manor Nursing Home, 867 F.2d 291, 294 (6th Cir.1989). Rule 60(b)(6) specifically states that the grounds under 60(b)(6) are "other" reasons justifying relief. This can mean nothing less than reasons not stated in 60(b)(1) and the other exceptions. A second reason why the plain language of the statute indicates that the exceptions must be mutually exclusive is that the time limitation placed upon the four discrete grounds stated in Rule 60(b)(1) would otherwise be rendered nugatory by action of 60(b)(6), which is without time limit.

Defendant's contention is that the instant situation falls within 60(b)(1), thus excluding power to act under 60(b)(6), and that plaintiff's motion should have been denied for failure to...