United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND
DENYING MOTION TO AMEND
L. Ludington United States District Judge
Johnny Tippins, a prisoner proceeding pro se,
initiated this action by filing suit against Defendants
NWI-1, Inc., LePetomane II, Inc., LePetomane III, Inc., and
Velsicol Chemical, LLC in Gratiot County Circuit Court on
October 23, 2015. Plaintiff alleges that Defendants are
responsible for injuries he suffered as a result of drinking
contaminated water while incarcerated in a state prison in
St. Louis, Michigan from 2004 to 2007. Because
Plaintiff's action did not comply with the relevant
statutes of limitations, his complaint was dismissed with
prejudice on August 12, 2016. See ECF Nos. 30, 31.
August 26, 2016 Plaintiff Tippins filed a motion for relief
from judgment under Federal Rule of Civil Procedure 60(b).
Through his motion Plaintiff seeks to amend his complaint in
order to assert a claim under the Comprehensive Environmental
Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. §§ 9601-75.
Plainitiff alleges that this amendment will remedy the
statute of limitations issue. On September 29, 2016 Tippins
filed a motion to amend his complaint, seeking to add a claim
under CERCLA and restating the arguments raised in his motion
for relief from judgment. See ECF No. 34. Both
motions will now be denied.
60(b) allows the Court to relieve a party from a final
judgment or order for several reasons, including “(1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence . . .; (3) fraud . . .,
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; [and] (5) the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable.” Fed.R.Civ.P.
60(b). In addition, subsection (b)(6) grants relief if there
are “exceptional and extraordinary
circumstances.” Fuller v. Quire, 916 F.2d 358,
360 (6th Cir. 1990).
from a judgment or order under Rule 60(b) is an
“extraordinary remedy that is granted only in
exceptional circumstances.” McAlpin v. Lexington 76
Auto Truck Stop, Inc., 229 F.3d 491, 502-03 (6th Cir.
2000). Exceptional circumstances under Rule 60(b) means
“unusual and extreme situations where principles of
equity mandate relief.” Olle v. Henry
& Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)
(emphasis in original). A claim of simple legal error,
unaccompanied by extraordinary or exceptional circumstances,
is not cognizable under Rule 60(b). Pierce v. UMW Welfare
& Retirement Fund, 770 F.2d 449, 451 (6th Cir.
1985). A decision to grant or deny a Rule 60(b) motion
“is a matter of discretion for the district
court.” Bank of Montreal v. Olafsson, 648 F.2d
1078, 1079 (6th Cir. 1981).
Tippins first argues that his failure to previously allege an
action under CERCLA was excusable neglect under Rule
60(b)(1). “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) (citations and quotations omitted).
of the first two prongs are at issue. However, Plaintiff
cannot show that he holds a meritorious CERCLA claim under
the third prong. First, Plaintiff has not established that he
has standing to bring an action under CERCLA, which
“permits private party property owners to recover from
prior private party property owners certain costs associated
with the cleanup of contamination caused by the prior owners,
where the cleanup costs were ‘necessary.'”
Reg'l Airport Auth. of Louisville v. LFG, LLC,
460 F.3d 697, 699-700 (6th Cir. 2006) (citing 42 U.S.C.
§ 9607). “Necessary” costs are only those
that were incurred in response to a threat to human health or
the environment, see 42 U.S.C. § 9607(a)(4)(B),
and “consistent” with the National Oil and
Hazardous Substances Pollution Contingency Plan
(“NCP”), see 42 U.S.C. § 9607(a). Through
his complaint Plaintiff Tippins alleges only personal injury.
He does not allege that he incurred any necessary clean-up
costs consistent with NCP. He therefore does not have a valid
claim under CERCLA, and leave to amend his complaint is not
arguendo that Tippins could state a claim under CERCLA, his
claim would still fail under the statute of limitations. This
was already explained in this Court's previous order
dismissing the case as follows:
Even if CERCLA did apply to the present action, Tippins's
claims would still be barred. Based upon his own allegations,
Plaintiff knew of the alleged cause of his injuries no later
than 2007 when he was diagnosed with Graves' disease.
See also Rouse, et al. v. Caruso, et al., Case No.
2:06-cv-10961, ECF No. 288 (E.D. Mich. March 3, 2006)
(denying Tippins's motion to intervene in part because
the statute of limitations on his claims had accrued
“no later than 2007”); Tippins v.
Caruso, No. 14-CV-10956, 2015 WL 5954800, at *2 (E.D.
Mich. Oct. 14, 2015) (“Tippins knew that he suffered an
injury no later than 2007.”). The fact that Tippins
allegedly did not know of the specific contaminant at issue
until 2014 does not change this fact, especially considering
that the City of St. Louis filed a public lawsuit related to
the p-CBSA contaminates in 2007, as acknowledged by Tippins
in his complaint. See Compl. ¶ 6. Because
Plaintiff knew of the alleged cause of his injury by 2007,
Plaintiff's claims are untimely.
See Order, ECF No. 30. Because Plaintiff cannot
state a claim under CERCLA, and because even if he could he
has not complied with the relevant statute of limitations,
his excusable neglect argument is without merit, ...