Gee v. Gee, 3:18-cv-2681-G-BN
Decision Date | 10 December 2018 |
Docket Number | No. 3:18-cv-2681-G-BN,3:18-cv-2681-G-BN |
Parties | STEVE SAMUEL GEE, JR., Petitioner, v. STATE OF TEXAS and STACEY D. GEE Respondents. |
Court | U.S. District Court — Northern District of Texas |
On October 19, 2018, the Court remanded this action to state court and also determined that Stacey D. Gee is entitled to costs and actual expenses, including reasonable attorney's fees, under 28 U.S.C. § 1447(c), referring to the undersigned United States magistrate judge "the amount of such costs and actual expenses, including attorney's fees, to be awarded to Ms. Gee under Section 1447(c)" for findings and recommendation under 28 U.S.C. § 636(b)(1). Dkt. No. 22.
Ms. Gee filed a motion to support her request for Section 1447(c) costs and expenses, see Dkt. No. 24, as ordered by the Court, see Dkt. No. 23. And, in response, Steve Samuel Gee, Jr., the removing party, filed a Response to Willful First Amendment Retaliation and Clear Fraud Upon the Court, Rule 60(b) Motion to Set Aside Judgment for Clear Fraud Upon the Court by Judicial Officers, and Notice of Tort Claims [Dkt. No. 25] (the "Response and Rule 60(b) Motion").
The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the relief requested in the Response and Rule 60(b) Motion and award Stacey D. Gee $1,225.70 in costs and actual expenses, including reasonable attorneys' fees, under Section 1447(c).
First, to the extent that Mr. Gee moves under Rule 60(b) for the Court to vacate its decision to remand this action to state court, because he removed the state proceeding under Section 1443, the Court may consider his motion as to the remand decision. See, e.g., J.P. Morgan Chase Bank, N.A. v. Innes, No. EP-13-CV-322-KC, 2013 WL 6097018, at *1 (W.D. Tex. Nov. 20, 2013) ( ); cf. Sanders v. Wright, 734 F. App'x 303, 304 (5th Cir. 2018) (per curiam) () .
Rule 60(b) offers grounds for relief from a final judgment, order, or proceeding, see FED. R. CIV. P. 60(b), and provides that:
Rule 60(b) motions are typically committed to the sound discretion of the district court. See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) (noting that the United States Court of Appeals for the Fifth Circuit has "consistently held that the relief under Rule 60(b) is considered an extraordinary remedy and that the desire for a judicial process that is predictable mandates caution in reopening judgments" (internal quotation marks and alterations omitted).
"The burden of establishing at least one of the Rule 60(b) requirements is on [Mr. Gee] as the movant." Bahsoon v. Wells Fargo Bank, NA, No. 3:12-cv-2017-D, 2013 WL 1831786, at *1 (N.D. Tex. May 1, 2013) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 n.14 (5th Cir. 1994) (en banc)); see also Wallace v. Magnolia Family Servs., L.L.C., Civ. A. No. 13-4703, 2015 WL 1321604, at *2 (E.D. La. Mar. 24, 2015) .
Mr. Gee specifically cites (b)(1), (b)(3), (b)(4), and (b)(6) as grounds for relief. See Dkt. No. 25 at 3.
"[I]n this circuit," Rule 60(b)(1) Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir. 1987) (footnotes omitted).
Rule 60(b)(3) imposes a similarly heavy burden: Rozier v.Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978) (internal citations omitted); accord Nat'l City Golf Fin. v. Scott, 899 F.3d 412, 418-19 (5th Cir. 2018); see also Rozier, 573 F.3d at 1338 ...
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