Jones v. Ramos
| Decision Date | 20 May 2020 |
| Docket Number | CAUSE NO. 3:19-CV-166 DRL-MGG |
| Parties | KIRK CAMERON JONES, Plaintiff, v. KEVIN A. RAMOS, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Although admittedly lacking good cause for not serving the defendants over the course of about 240 days—far more than the 90 days afforded by Federal Rule of Civil Procedure 4(m)—Kirk Cameron Jones sought amnesty in the form of a permissive extension.
He had already been given three (more than adequate) opportunities to serve process. He let the 90 days allowed by rule pass, aware that the complaint was filed on the eve of the statute of limitations and without the prospect of a tolling agreement to buy more time. The New Jersey federal court gave him another 40 days, warning him that the case would be dismissed without service, but he watched that opportunity slip away too. After transfer to this court, he waited more than 100 days and after a motion to dismiss was filed before retaining new counsel, who then worked diligently to address the issue. Not a single defendant evaded service throughout this time.
These weren't circumstances over roughly 240 days1 that justified a permissive extension under this circuit's analysis, see Cardenas v. City of Chi., 646 F.3d 1001, 1006-07 (7th Cir. 2011), so the court dismissed this case, see, e.g., Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988) (); Friend v. Lloyd & McDaniel, PLC, No. 4:19-CV-6, 2020 U.S. Dist.LEXIS 8918, 6-7 (N.D. Ind. Jan. 16, 2020) (Moody, J.) (); Kapitan v. DT Chicagoland Express Inc., 2013 U.S. Dist. LEXIS 96765, 2-4 (N.D. Ind. Oct. 15, 2013) (Lozano, J.) (). He now asks the court to reconsider.
Since appellate rule amendments in 1993, proper classification of motions to reconsider stems largely from their substance. Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008); Borrero v. City of Chi., 456 F.3d 698, 701 (7th Cir. 2006); cf. Carter v. City of Alton, 922 F.3d 824, 825 n.1 (7th Cir. 2019) () (citing pre-1993 case); Sease v. Darko, 795 F. Appx. 454, 458 (7th Cir. 2019) (). Although Mr. Jones filed his motion within the 28 days allowed under Rule 59(e), he hasn't argued that the court made an error of law or offered newly discovered evidence that substantively would fall under Rule 59(e). See Obriecht, 517 F.3d at 494. He seeks reconsideration under Rule 60(b) instead. The court proceeds accordingly.
Rule 60(b) permits the court on just terms to relieve a party from a final judgment. "Relief under Rule 60(b) is an extraordinary remedy granted only in exceptional circumstances." Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir. 2011). Relief is limited to the grounds specified in the rule or extraordinary situations. Williams v. Illinois, 737 F.3d 473, 476 (7th Cir. 2013). Mr. Jones seeks relief for "mistake, inadvertence, surprise, or excusable neglect," Fed. R. Civ. P. 60(b)(1), and the catch-all of extraordinary circumstances, Fed. R. Civ. P. 60(b)(6) (). See also Buck v. Davis, 137 S. Ct. 759, 777-78 (2017) ().
At oral argument on the motions to dismiss, Mr. Jones explained that he endeavored to obtain information (from New Jersey counsel) to lay bare the reasons for the delay in service and establish good cause in the face of the dismissal requests in Indiana (Tr. 18-21, 23-24). Mr. Jones had the opportunity to share that information in response briefs, and even at the time of oral argument. Infact, he had many months to develop that record. That was not forthcoming, leaving Mr. Jones at oral argument to confess the lack of good cause (Tr. 23-24). He was wise to do so, but that meant he wasn't a candidate for automatic grace. See Fed. R. Civ. P. 4(m); Henderson v. United States, 517 U.S. 654, 662 (1996); Cardenas, 646 F.3d at 1006; see also Geiger, 850 F.2d at 333 ().
Mr. Jones now seeks another do-over—this time not just for service, but for his defense to the motions to dismiss. John Wooden coached his successful UCLA teams that if you don't have the time to do it right, you won't have the time to do it over. That winning philosophy seems apt here.
Now isn't the time to try to introduce facts that could have been presented before this court's ruling in February. "Rule 60(b) motions cannot be used to present evidence that with due diligence could have been introduced before judgment." Rutledge v. United States, 230 F.3d 1041, 1052 (7th Cir. 2000); see Heft v. Moore, 351 F.3d 278, 282 n.1 (7th Cir. 2003) (); Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir. 1996) (); see also Kennedy v. Schneider Elec., 893 F.3d 414, 419 (7th Cir. 2018) (). Mr. Jones offers nothing but old facts that he could have shared sooner on multiple occasions; and that forecloses reconsideration.
To be sure, the court is not insensitive to the personal circumstances that New Jersey counsel faced in late 2019 and early 2020, and regrets the family's loss, but the reality is that Mr. Jones had more than sufficient time to perfect service well before then and could have offered his explanation of good cause for the delay in service before or after then. His counsel (in either venue) was never personally incapacitated. See Dickerson v. Board of Educ., 32 F.3d 1114, 1118 (7th Cir. 1994) (). Briefing on the motions to dismiss occurred from June 10, 2019 until September 1, 2019. Oral argument ensued on January 24, 2020. Even thereafter, faced withspecific questions from the court about good cause, Mr. Jones had ten days before the court ruled on February 3, 2020. He could have requested an extension, surreply, or supplement. He didn't. After nearly seven months, the choices here can't be described as mistakes, inadvertence, surprises, excusable neglect, or extraordinary circumstances.
An attempt at a deeper analysis leaves this reconsideration motion wanting. Mr. Jones hasn't argued that the court committed a manifest error of law or fact. See Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008). Mr. Jones says the judgment should be set aside for mistake, inadvertence, surprise, or excusable neglect, but he doesn't say which one or why. It's not the court's job to develop his argument. See Gross v. Town of Cicero, 619 F.3d 697, 704 (7th Cir. 2010) (quoting APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)); United States v. Tockes, 530 F.3d 628, 633 (7th Cir. 2008); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1999).
Mr. Jones skips this step of bringing his argument within Rule 60(b)'s parameters and invites the court merely to rerun the calculus on Rule 4(m)'s option of a permissive extension, albeit based on information he could have adduced before. First things first: Mr. Jones hasn't established a mistake or inadvertence on the court's part or his part; it can be either. See Pearson v. Target Corp., 893 F.3d 980, 984 (7th Cir. 2018). After the New Jersey federal court issued its order warning Mr. Jones of dismissal without service, he can't claim he was surprised. That leaves excusable neglect.
Any neglect on this record (even as amended by affidavit) comes without excuse. Mr. Jones hasn't cited the standard or even tried to argue how his conduct meets the standard. See Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380, 395 (1992); Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006); Robb v. Norfolk & W. Ry., 122 F.3d 354, 361-62 (7th Cir. 1997). The delay was not excusable when it was within his reasonable control, when it was more than twice the time allowed by rule, when he had prior warning to correct it, when it has pushed this proceeding out by nearly a year now, when he had adequate time to present facts and argument for good cause, and whengood faith and good cause remain absent. Providing materials to insurance adjusters to ready discussion over settlement is not an excuse to ignore federal rules or a federal court order. See, e.g., Zuelzke Tool & Eng'g Co. v. Anderson Die Castings, Inc., 925 F.2d 226, 229 (7th Cir. 1991) (); Simon v. Pay Tel. Mgmt., Inc., 782 F. Supp. 1219, 1226 (N.D. Ill. 1991) ().
Even if the court worked outside Rule 60(b)(1) and indulged this request under Rule 60(b)(6), the court isn't so sure this helps Mr. Jones from what it can divine of the motion. Rule 60(b)(6) remains "more open-ended," Pearson, 893 F.3d at 984, and gives the court "wide discretion," Buck, 137 S. Ct. at 777. Rule 60(b)(6) acts as a reservoir of equity to achieve justice. That said, being mutually exclusive to the other Rule 60(b) subsections, it remains confined to truly extraordinary circumstances. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64 (1988). It isn't enough, for instance, for the record to demonstrate mere mistake or excusable neglect. See Mendez v. Republic Bank, 725 F.3d 651, 658-59 (7th Cir. 2013). There must be, as the rule says, other reasons that justify relief.
The need to obtain Indiana counsel isn't an extraordinary circumstance. Indeed, parties and...
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