UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEROME COLLINS,

Plaintiff, Civil Action No. 15-CV-11756

vs. HON. BERNARD A. FRIEDMAN

RALPH GODBEE, et al.,

Defendants.

_____________________/

OPINION AND ORDER DENYING

PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT

This matter is presently before the Court on plaintiff’s motion to set aside

judgment [docket entry 84]. Defendants have filed a response in opposition. Plaintiff has not

replied, and the time for him to do so has expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the

Court shall decide this motion without a hearing.

In the instant motion, filed on June 30, 2020, plaintiff asks that the Court set aside

the judgment entered for defendants in this matter on September 13, 2019. The judgment was

entered after the Court granted (1) defendant Craig’s motion for judgment on the pleadings on

August 15, 2019, (2) the motion of defendants Godbee, Lewis, Walton, Svenkensen, Williams,

Moore, and Lever for judgment on the pleadings or to dismiss on August 27, 2019, and (3) the

motions of defendants Hall and Dolunt for judgment on the pleadings or to dismiss on

September 13, 2019. Plaintiff did not appeal.

On November 22, 2019, plaintiff filed a motion for leave to file a third amended

complaint in an effort to cure the pleading defects that led to the dismissal of the second

amended complaint and the entry of judgment. On December 3, 2019, citing Pond v. Haas, 674

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F. App’x 466, 472-73 (6th Cir. 2016), the Court denied that motion because

plaintiff has not met the procedural prerequisite – i.e., moving to

set aside the judgment – for seeking leave to amend. Nor has he

offered any explanation, to say nothing of a compelling one, for

“failing to seek leave to amend prior to the entry of judgment,” id.

at 473, or why the Court should overlook his repeated failure to

cure the pleading defects which resulted in the dismissal of the

second amended complaint and the entry of judgment against him.

Op. & Ord. Den’g Pl.’s Mot. for Leave to File a Third Am. Compl. [docket entry 78] at 3.

On December 17, 2019, plaintiff filed a motion to alter or amend the judgment and

for leave to file a third amended complaint. The Court denied that motion for the following

reasons:

Under Leisure Caviar and Pond, a plaintiff who seeks leave to

amend in order to cure a pleading defect that led to dismissal and

entry of judgment against him must show that he is entitled to

relief under Rule 59 or 60 and that he has a compelling

explanation for having failed to seek leave to amend before

judgment was entered. In the present case, plaintiff has made

neither showing. He has identified no error in the Court’s

reasoning that defendants were entitled to judgment on the

pleadings because the [second amended complaint] contained no

allegations linking them to any of plaintiff’s claims. Under these

circumstances, there is no basis for altering or amending the

judgment under Rule 59(e), which requires the movant to show

“(1) a clear error of law; (2) newly discovered evidence; (3) an

intervening change in controlling law; or (4) a need to prevent

manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620

(6th Cir. 2005). Nor is there any basis for vacating the judgment

under Rule 60(b)(6) – the only conceivably applicable subsection

of Rule 60(b) – which applies only in “extraordinary or

exceptional circumstances” and “cannot be used to avoid the

consequences of a party’s decision ... to forego an appeal from an

adverse ruling.” Pierce v. United Mine Workers, 770 F.2d 449,

451-52 (6th Cir. 1985) (internal quotation marks and citation

omitted). Plaintiff’s failure to demonstrate his entitlement to relief

under Rule 59(e) or 60(b) independently justifies the Court in

denying the instant motion.

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Additionally, plaintiff has not explained why he failed to seek

leave to amend the SAC before the Court entered judgment, a

separate showing the above-cited cases require him to make. The

SAC’s glaring pleading defect, which applied equally to all of the

defendants, was clearly identified in defendants’ motions for

judgment on the pleadings filed, as noted, weeks before the Court

granted those motions and entered judgment in their favor on

September 13. Moreover, two of the Court’s opinions (filed on

August 15 and August 27), granting two of these motions, were

filed well prior to the judgment. Plaintiff had ample opportunity to

seek leave to amend before judgment was entered but neglected to

do so, and he has offered no satisfactory explanation for this

failure.

Collins v. Godbee, No. 15-CV-11756, 2020 WL 103708, at *2-3 (E.D. Mich. Jan. 9, 2020).

On January 20, 2020, plaintiff’s attorney filed a “motion to withdraw as counsel

of record for plaintiff, and for stay of proceedings to permit plaintiff to retain new counsel.” In

that motion, plaintiff’s then counsel, Benjamin Whitfield Jr., indicated that he “has developed

serious health challenges . . . [t]hat . . . materially impair his ability to continue representation.” 

Mr. Whitfield asked that the Court permit him to withdraw and that plaintiff be given ninety

days to obtain substitute counsel. On January 23 the Court granted the motion to withdraw but

denied the requested “stay of proceedings” because

[t]he Court entered judgment for defendants in this matter on

September 13, 2019. Plaintiff did not appeal, and the time for him

to do so expired on October 15. Nor, during the thirty-day appeal

period, did plaintiff file any of the motions listed in Fed. R. App.

P. 4(a)(4)(A)(i)-(vi), which would have tolled the appeal period.

Under these circumstances, the judgment has become final 

and unappealable. There are no proceedings for the Court to

stay. 

Ord. Grant’g Pl.’s Counsel’s Mot. to Withdraw and Deny’g Pl.’s Mot. for Stay of Proceedings

[docket entry 83] at 1-2.

Plaintiff took no further action in this matter until filing the instant motion on

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June 20. Through new counsel, plaintiff argues that the September 13, 2019, judgment should

be set aside pursuant to Fed. R. Civ. P. 60(b)(1) and/or (b)(6)1

 on the grounds

6.That Plaintiff’s counsel’s failures to appropriately respond to the

Court’s instructions to properly amend the Complaints, to remedy

the noted defects, and to timely appeal the Judgments were due to

Counsel’s suffering from grave and serious illnesses, outlined

by Plaintiff’s counsel in the aforementioned Motion to Withdraw.

7.That there exists manifest injustice that will continue to result if

Plaintiff is not allowed to pursue his claims and that excusable

neglect is present where Plaintiff’s counsel was so debilitated as

to be unable to properly represent Plaintiff. 

Pl.’s Mot. to Set Aside J. at 2. Plaintiff argues that Fed. R. Civ. P. 60(b)(1) applies because “he

has demonstrated excusable neglect via the serious, grave illnesses suffered by Plaintiff’s

counsel as highlighted in Plaintiff’s counsel’s Motion to Withdraw as Counsel.” Pl.’s Br. at 4. 

He also points to Fed. R. Civ. P. 60(b)(6), which covers “any other reason that justifies relief.”

In opposing this motion, defendants correctly argue that Fed. R. Civ. P. 60(b)

cannot be used to cure errors by plaintiff’s former counsel. Without saying so explicitly,

1

 Rule 60 states:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

On motion and just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for the

following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

* * *

or

(6) any other reason that justifies relief.

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plaintiff appears to argue that the failings of his prior counsel qualify as inadvertence or

excusable neglect under Rule 60(b)(1) because his prior counsel was ill. In Barron v. Univ. of

Mich., 613 F. App’x 480, 486-87 (6th Cir. 2015), the court of appeals stated:

“In determining whether relief is appropriate under Rule 60(b)(1),

courts consider three factors: (1) culpability—that is, whether the

neglect was excusable; (2) any prejudice to the opposing party;

and (3) whether the party holds a meritorious underlying claim or

defense.” Yeschick v. Mineta, 675 F.3d 622, 628 (6th Cir. 2012)

(internal quotation marks omitted). “A party seeking relief must

first demonstrate a lack of culpability before the court examines

the remaining two factors.” Id. at 628-29 (internal quotation marks

omitted). Barron cannot demonstrate a lack of culpability and thus

the district court did not abuse its discretion in denying her Rule

60(b) motion. Barron argues that her counsel’s conduct was

inexcusable but hers was not. But we have held that “a

determination of excusable neglect does not turn solely on whether

the client has done all that he reasonably could do to ensure

compliance with a deadline; the performance of the client’s

attorney must also be taken into account.” Reyes, 307 F.3d at 456

(internal quotation marks omitted) (emphasis in original). “[T]he

case law consistently teaches that out-and-out lawyer

blunders—the type of action or inaction that leads to successful

malpractice suits by the injured client—do not qualify as ‘mistake’

or ‘excusable neglect’ within the meaning of Rule 60(b)(1).”

McCurry, 298 F.3d at 595 (internal quotation marks and brackets

omitted). 

(Emphasis in original.) 

Even if an attorney’s illness could in theory provide a basis for affording relief

under Rule 60(b)(1), this cannot excuse plaintiff’s former counsel’s inadvertence or neglect in

the present case. Mr. Whitfield did not move to withdraw until January 20, 2020, four months

after the Court entered judgment. Before the Court entered judgment, Mr. Whitfield participated

actively in the litigation of this case, filing a second amended complaint, responding to

defendants’ three motions for judgment on the pleadings or to dismiss, and issuing summonses. 

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After the Court entered judgment, Mr. Whitfield continued to litigate actively, seeking leave to

file a third amended complaint and filing a motion to alter or amend the judgment. There is

simply no indication (or evidence submitted in support of the instant motion) that Mr. Whitfield

was incapacitated during this period of time. Rather, his failure to amend the complaint – prior

to the entry of judgment – to allege that defendants were personally involved in violating any

of plaintiff’s rights is precisely the kind of “lawyer blunder” the Sixth Circuit has held does not

constitute excusable neglect under Rule 60(b)(1). The neglect is all the more inexcusable

because even after Mr. Whitfield withdrew from this case in January 2020, plaintiff still took

no action until filing the instant motion, through new counsel, six months later. 

Under these circumstances, plaintiff has failed to show excusable neglect, the

prerequisite factor under Barron. This makes consideration of the other factors, prejudice and

“meritorious defense,” unnecessary. Nonetheless, the Court presumes that defendants would

be prejudiced by vacating the judgment ten months after it was entered. With the passage of

time, memories fade and witnesses become unavailable. Moreover, this ten-month delay is in

addition to the years Mr. Whitfield delayed in recommencing this action after the stay was lifted

once the City of Detroit emerged from bankruptcy. The Court has discussed these delays in

previous opinions. See docket entries 18, 24, 33, 36, and 42.

The third factor, the potential merit of plaintiff’s claims, is difficult to assess. 

Plaintiff claims that defendants conspired to bring false criminal charges against him for time

fraud. Plaintiff was acquitted of those charges in 2011, but then discharged based on the same

allegations in 2013. 

Regardless of the merit plaintiff’s claims may have, the fact remains that no relief

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is available to him under Rule 60(b)(1) because the neglect that led to the entry of judgment was

not excusable. To the extent plaintiff relies on Rule 60(b)(6), this rule

is applicable “only in exceptional or extraordinary circumstances

which are not addressed by the first five numbered clauses of the

Rule,” McDowell v. Dynamics Corp. of Am., 931 F.2d 380, 383

(6th Cir. 1991) (quoting Hopper v. Euclid Manor Nursing Home,

Inc., 867 F.2d 291, 294 (6th Cir. 1989)), and plaintiffs provide no

legal support for the applicability of that residual provision to a

case like this one.

Harness v. Taft, 801 F. App’x 374, 378 (6th Cir. 2020). Just as in Harness, plaintiff offers no

explanation as to why the present case presents “exceptional or extraordinary circumstances”

that are not addressed by Rule 60(b)(1). Accordingly,

IT IS ORDERED that plaintiff’s motion to set aside judgment is denied.

s/Bernard A. Friedman

BERNARD A. FRIEDMAN

Dated: July 20, 2020 SENIOR UNITED STATES DISTRICT JUDGE

Detroit, Michigan

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