Parker v. Loyal, 1:15-cv-00826-JMS-TAB
| Decision Date | 12 June 2017 |
| Docket Number | No. 1:15-cv-00826-JMS-TAB,1:15-cv-00826-JMS-TAB |
| Parties | BRENDA PARKER, Plaintiff, v. OFFICER LOYAL, in official and individual capacity, OFFICER PILKINGTON, in official and individual capacity, OFFICER ROLINSON. in official and individual capacity, MARK SENESAC, CITY OF INDIANAPOLIS, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Presently pending before the Court are two Motions filed by pro se Plaintiff Brenda Parker to set aside final orders entered by the Court pursuant to Federal Rule of Civil Procedure ("FRCP") 60(b). [Filing No. 128 (); Filing No. 129 ().] Defendants City of Indianapolis, Officer Loyal, Officer Pilkington, and Officer Rolinson (collectively, the "City Defendants") and Defendant Mark Senesac did not respond to the Motions. Accordingly, Ms. Parker's Motions are now ripe for review. Ms. Parker also filed a Motion to Proceed on Appeal in forma pauperis, [Filing No. 131], which the Court will address in a separate order.
Ms. Parker's present Motions come nearly two years after she filed an Amended Complaint setting forth numerous claims related to the repossession of her vehicle in May of 2014. [Filing No. 11.] In its Screening Order, the Court summarized the incident giving rise to Ms. Parker's claims as follows:
[Ms. Parker] called the police at the time the vehicle was being towed and told officers that the creditor had "charged off" the debt in 2012 when it reported the car loan to be an uncollectible debt. The officers reviewed papers that the towing company had, determined that the towing company's paperwork was more current than [Ms. Parker's paperwork], and allowed the towing company to repossess her car.
[Filing No. 21 at 2 (analyzing Filing No. 11).]
The Court has dismissed several of the claims set forth in Ms. Parker's Amended Complaint, including all claims against Defendants Capital One Auto Finance, a division of Capital One N.A. ("Capital One"), and Onyx Acceptance Corporation ("Onyx"). [Filing No. 21; Filing No. 45.]1 As a result, the only Count of Ms. Parker's Amended Complaint that remains pending is a 42 U.S.C. § 1983 due process claim against the City Defendants and Mr. Senesac—the tow truck driver. [Filing No. 45 at 8; Filing No. 120 at 7-8 ().]
Ms. Parker now asks this Court for relief from two final Orders. First, Ms. Parker requests that this Court grant relief from its Order entered on April 28, 2017, [Filing No. 120], and Partial Final Judgment, [Filing No. 123], which: (1) denied her Motion for Leave to File a SecondAmended Complaint; (2) denied her Motion to Set Aside/Vacate Order Dismissing Capital One and Onyx; and (3) entered Partial Final Judgment for Capital One and Onyx. [Filing No. 128 at 1.] Second, Ms. Parker requests that this Court grant relief from its Order on Objections to Two Magistrate Judge Orders, [Filing No. 119], which: (1) overruled Ms. Parker's Objection to Magistrate Judge Baker's Order dated February 21, 2017; and (2) overruled Ms. Parker's Objection to Magistrate Judge Baker's Order dated February 27, 2017. [Filing No. 129 at 1.]
The Court notes that on the same day she filed a Motion to Grant Relief from Order and Partial Final Judgment, [Filing No. 128], Ms. Parker also filed a notice appealing the Court's Partial Final Judgment for Capital One and Onyx. [Filing No. 130 (appealing Filing No. 123).]
Generally, the filing of a notice of appeal "is an event of jurisdictional significance" which "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Kusay v. U.S., 62 F.3d 192, 193 (7th Cir. 1995) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)). However, motions for relief from judgment under FRCP 60(b) provide an exception to this rule. The Seventh Circuit has held that "[d]istrict courts possess limited authority to deny Rule 60(b) motions while an appeal is still pending, allowing the court of appeals to make its resolution a final one, knowing that a district court has no desire to amend its ruling." Ameritech Corp. v. Int'l Bhd. of Elec. Workers, Local 21, 543 F.3d 414, 418-19 (7th Cir. 2008). Conversely, in the event a district court is inclined to grant a Rule 60(b) motion, the Seventh Circuit has held that the district court should notify the Seventh Circuit of its intention and the Seventh Circuit "will remand the entire case for that purpose." Id. at 419. Accordingly, the Court is satisfied that it possesses the jurisdiction to considerMs. Parker's Motion to Grant Relief from Order and Partial Final Judgment from the Court, notwithstanding her simultaneous appeal.
Both of Ms. Parker's Motions appear to be premised on the same legal argument—that the Court should set aside its prior Orders due to "fraud and abuse of discretion" pursuant to FRCP 60(b). [Filing No. 128 at 1; Filing No. 129 at 1.] However, each Motion contains a variety of other underlying allegations. Accordingly, the Court will summarize and rule on each Motion in turn.
Ms. Parker's first Motion primarily concerns her efforts to file a Second Amended Complaint and her efforts to revive her claims against Capital One and Onyx. [Filing No. 128.] First, with regard to the Court's previous denial of her Motion for Leave to File a Second Amended Complaint, [Filing No. 120 at 3-8 (denying Filing No. 95)], Ms. Parker alleges that the Court's Order should be reversed because "a mistake has been committed," [Filing No. 128 at 2], and asserts that the Court erred in making her untimely filing the "focal point" of the Court's decision to deny her Motion, [Filing No. 128 at 3].
Second, with regard to the Court's denial of her Motion to Set Aside the Order Dismissing Capital One and Onyx, [Filing No. 120 at 8-10 (denying Filing No. 115)], and the Court's related entry of Final Judgment, [Filing No. 120 at 10-11 (granting Filing No. 106); Filing No. 123], Ms. Parker alleges that Capital One committed fraud "by claiming to be a creditor, a debt collector, and a credit reporting agency" and argues that her Federal action is not barred by "[c]laim preclusion or issue preclusion." [Filing No. 128 at 5-8.]
FRCP 60(b) provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding." Fed. R. Civ. P. 60(b). "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). A motion under FRCP 60(b) is "a collateral attack on the judgment" and the grounds for setting aside a judgment under this rule "must be something that could not have been used to obtain a reversal by means of a direct appeal." Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009); see also Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000) () In addition, Rule 60(b) "applies only to a final judgment, order, or proceeding." Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015) (citations omitted).
FRCP 60(b) enumerates several grounds for reversal, including instances where there is evidence of "fraud. . . misrepresentation, or misconduct by an opposing party." Fed. R. Civ. P. 60(b)(3). In order to obtain relief under the fraud provision of Rule 60(b), a movant must prove that: "(1) the party maintained a meritorious claim at trial; and (2) because of the fraud, misrepresentation or misconduct of the adverse party; (3) the party was prevented from fully and fairly presenting its case at trial." Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). A party seeking to set aside a judgment under FRCP 60(b)(3), "must prove fraud by clear and convincing evidence." Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010).
In addition, FRCP 60(b) allows courts to relieve a party of final judgement in instances of "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). The Rule is "designed to address mistakes attributable to special circumstances and not merely to erroneousapplications of law." 3SM Realty & Dev., Inc. v. F.D.I.C., 393 F. App'x 381, 384 (7th Cir. 2010) (citations omitted).
Ms. Parker's FRCP 60(b) challenge to the Court's denial of her Motion for Leave to File a Second Amended Complaint, [Filing No. 120 at 3-8 (denying Filing No. 95)], fails for several reasons. First, the Court's previous denial of Ms. Parker's Motion for Leave to File a Second Amended Complaint is not a final judgment, order, or proceeding. Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 248 (7th Cir. 1992) () (citations omitted). Rule 60(b) is, "by its terms[,] limited to 'final' judgments or orders." Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 559 (7th Cir. 2016) (quoting Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006). Accordingly, FRCP 60(b) does not provide an avenue for Ms. Parker to seek relief from the Court's denial of her Motion for Leave to File a Second Amended Complaint.
However, even if Ms. Parker were requesting relief from a final order, she has failed to establish any basis that would entitle her to such relief. Ms. Parker first argues that she is entitled to relief because of "fraud and abuse of...
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