UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID SCOTT,

Plaintiff,

Case No. 09-CV-12129 

vs. HON. GEORGE CARAM STEEH

BERNADETTE STONE, MICHAEL LEWIS,

JAN BIGELOW, and TRACIE SHAW,

Defendants.

_____________________________/

ORDER DENYING PLAINTIFF'S MOTION TO MODIFY ORDER (# 23)

Plaintiff David Scott, appearing pro per, moves under Federal Rule of Civil

Procedure 60(a) and (b)(6) for relief from this court's September 14, 2009 Order requiring

him to pay $2,901.62 in costs by December 14, 2009 as a condition of proceeding with this

lawsuit, or face dismissal of his claims. Pursuant to E.D. Mich. Local R. 7.1(e)(2), it is

ORDERED that the motion be resolved without oral argument.

The underlying circumstances are set forth in the September 14, 2009 Order, and

will be reiterated herein only to the extent necessary to adjudicate this motion. On the

morning of what was to be the first day of trial in Scott's earlier lawsuit, Scott v. Stone, 03-

75123 ("Scott I"), Scott, represented by pro bono counsel, moved orally for voluntary

dismissal of his claims without prejudice. Scott was cautioned that it was "virtually certain"

that the court would impose monetary sanctions under Rule 41(d) if he refiled Scott I,

including defense counsel's costs and the costs of assembling the jury. Scott was advised

that the court would take his financial status into consideration as part of the totality of the

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circumstances. After granting Scott's motion for involuntary dismissal, Scott appeared pro

se that same day, June 2, 2009, and filed the instant lawsuit, alleging the same claims

against the same defendants as were alleged in Scott I. On September 14, 2009, the court

granted the defendants' motion for costs under Federal Rule of Civil Procedure 41(d),

ordering Scott to pay $1,285.07 in defense costs incurred by Michigan Attorney General

Michael A. Cox in Scott I, and ordering Scott to pay $1,616.55 to the Clerk of the Court for

the costs of assembling the jurors. Scott is also ordered to pay these costs by December

14, 2009 as a condition of proceeding with this second lawsuit, or face dismissal of his

claims.

In moving for relief form judgment under Rule 60(a) and (b)(6), Scott asserts that the

court failed to specify whether dismissal of this lawsuit would be with or without prejudice.

Scott continues that Rule 41(d) does not provide authority for the court to impose a

payment deadline. Scott asserts that the court did not impose a deadline on paying costs

when it granted his motion for involuntary dismissal, and therefore he was unfairly denied

the opportunity to consider this condition in deciding to involuntarily dismiss Scott I. Scott

further argues that the court stated in granting his motion for involuntary dismissal that it

would only consider the costs incurred by defense counsel in connection with the June 2,

2009 appearance at trial, not defense counsel's costs for the entire lawsuit. Scott argues

that the court has overlooked his indigent status. Scott offers to put up collateral to secure

his payment of costs, including a September 28, 2009, $50,000.00 default judgment

entered in his favor in another 2003 federal lawsuit. Scott asks the court to modify the

September 14, 2009 Order to provide that: (1) this case is only stayed pending his payment

of the costs, without threat of dismissal; (2) the amount of costs is reduced by 60 percent;

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and (3) he may make payments of $100.00 per month with the posting of collateral - two

used vehicles worth $9,000.00 and the $50,000.00 default judgment. At minimum, Scott

asks for a 90-day extension to pay the costs, or dismissal without prejudice.

Rule 60(a) authorizes a court to correct clerical mistakes arising in judgments or

orders arising from oversight. The September 14, 2009 Order contains no clerical

mistakes.

Rule 60(b)(6) authorizes a court to grant relief from an order for any other reason

not set forth in Rule 60(b)(1-5). Pierce v. United Mine Workers of America Welfare and

Retirement Fund for 1950 and 1974, 770 F.2d 449, 451 (6th Cir. 1985). Legal errors are

governed by Rule 60(b)(1), and must be raised in the normal time for taking an appeal,

which here is 30 days. Id; Fed. R. App. P. 4(a)(1)(A). Scott's instant motion was filed on

November 3, 2009, more than 30 days after the challenged September 14, 2009 Order.

Relief under Rule 60(b)(6) is merited only under extraordinary circumstances, and can only

be used in cases which are not covered under Rule 60(b)(1-5). Pierce, 770 F.2d at 451.

Scott's arguments of legal error are governed by Rule 60(b)(1), are untimely, and cannot

be addressed under the residual clause of Rule 60(b)(6). Id. Scott has also failed ro

present extraordinary circumstances for granting relief under Rule 60(b)(6). Id. 

In closing, the court notes that it was authorized by Rule 41(a) to grant Scott's

motion for dismissal 'on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2).

The terms of the September 14, 2009 Order are entirely proper under the circumstances

of this case. Unless the court states otherwise, as here, a dismissal under Rule 41(a) is

without prejudice. Fed. R. Civ. P. 41(a)(2). Scott's claims are subject to dismissal without

prejudice if the costs are not paid by December 14, 2009 as ordered. Scott's argument that

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he was denied the opportunity to consider that there could be a time frame for paying costs

is based on an unreasonable premise that his second filing of the 2003 Scott I case could

remain stayed indefinitely. The award of $2,901.62 in costs to defense counsel was

unopposed by Scott, and certainly does not represent the defense's entire costs in the four

years of litigating Scott I. The court took Scott's indigent status into consideration in issuing

its September 14, 2009 Order. Scott's requests that this action remain indefinitely stayed,

that the costs be reduced by 60 percent, that he be permitted to make $100.00 monthly

payments, and that he be granted an additional 90 days to pay the costs as ordered are

not well taken. The September 14, 2009 Order need not be modified to reflect that

dismissal will be without prejudice. Fed. R. Civ. P. 41(a)(2). To prevent Scott from simply

refiling his complaint upon dismissal and generating a Scott III, Scott will be ordered to

show cause before refiling this lawsuit that he has paid the costs as ordered in the

September 14, 2009 Order.

Scott's motion for relief from judgment is hereby DENIED. The court's September

14, 2009 Order remains in force and effect. 

SO ORDERED.

Dated: November 17, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

November 17, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

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