United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM
AUGUST 7, 2019 JUDGMENT, VACATING ORDER, SETTING BRIEFING
SCHEDULE, AWARDING COSTS, AND MODIFYING CASE MANAGEMENT
L. LUDINGTON UNITED STATES DISTRICT JUDGE
13, 2018, Plaintiff, James Michael Fitzpatrick, brought suit
against Defendants, Bridgestone Retail Operations, LLC and
Dorothy Hart Wilson in Saginaw Circuit Court. ECF No. 1 at
PageID.10-11. Plaintiff alleges he was a patron at
Bridgestone when Defendant Wilson's dog, who was in the
store with Wilson, bit him on the leg. Id. at
PageID.11-13. Plaintiff states he suffered from a
flesh-eating bacteria as a result of the dog bite and had to
undergo surgery to preserve his leg. Id. at
PageID.14-15. Plaintiff alleges violations of Michigan's
Dog Bite statute, common law liability, common law
negligence, and premises liability. Id. at
August 17, 2018, Defendant Bridgestone Retail Operations, LLC
removed this case from Saginaw Circuit Court. ECF No. 1.
After discovery concluded, on July 12, 2019, Defendant
Bridgestone filed a motion for summary judgment. ECF No. 28.
Plaintiff did not file a response to Bridgestone's
motion. On August 7, 2019, an order was entered granting
Bridgestone's motion for summary judgment as unopposed
and dismissing Defendant Bridgestone from the case. ECF No.
33. The same day, Plaintiff filed a motion to set aside the
order granting the motion for summary judgment. ECF No. 34.
Defendant Bridgestone filed a response to Plaintiff's
motion to set aside on August 28, 2019. ECF Nos. 36, 37.
Plaintiff replied on September 4, 2019. ECF No. 38.
explains in his motion to set-aside the order that his
attorney's assistant correctly calculated the response
deadline as August 2, 2019, but “inadvertently typed
the key ‘8' as opposed to ‘2,' causing
the wrong date to be noted. . . . Because the due date was
incorrectly calendared, Plaintiff did not file a response by
August 2, 2019.” ECF No. 34 at PageID.1224-1225.
Plaintiff seeks relief from the August 7, 2018 order due to
“mistake, inadvertence, and/or excusable neglect”
of counsel. Id.
Rule of Civil Procedure 60(b) provides a list of reasons that
“the court may relieve a party or its legal
representative from a final judgment [or] order.”
Plaintiff seeks relief based on 60(b)(1) - “mistake,
inadvertence, surprise, or excusable neglect.” The
Sixth Circuit has defined “neglect” to include
“late filings caused by inadvertence, mistake, or
carelessness.” Jinks v. AlliedSignal, Inc.,
250 F.3d 381, 386 (6th Cir. 2001) (quoting Pioneer Inv
Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 381
(1993)). The Sixth Circuit has also concluded that
“Plaintiff's Rule 60(b) Motion must be equitably
and liberally applied to achieve substantial justice. Doubt
should be resolved in favor of a judicial decision of the
merits of a case, and a technical error or a slight mistake
by plaintiff's attorney should not deprive plaintiff of
an opportunity to present the true merits of his
claims.” In re Salem Mortgage Co., 791 F.2d
456, 459-60 (6th Cir. 1986) (quoting Blois v.
Friday, 612 F.2d 938, 940 (5th Cir. 1980)).
outlines the five factors the Sixth Circuit has derived from
the Supreme Court to determine if neglect is
“excusable” including: “(1) the danger of
prejudice to the other party, (2) the length of delay, (3)
its potential impact on judicial proceedings, (4) the reason
for the delay, and (5) whether the movant acted in good
faith.” Jinks v. AlliedSignal, Inc., 250 F.3d
381, 386 (6th Cir. 2001). In this case, the danger of
prejudice and length of the delay to Defendant Bridgestone
was minimal because Plaintiff intended to submit a response
to Defendant Bridgestone's motion for summary judgment on
August 8, 2019. These two factors weigh in Plaintiff's
favor. Third, the potential impact on the overall judicial
proceedings is minimal. The delay by Plaintiff was only six
days. Fourth, the reason for the delay was a clerical error.
Lastly, Plaintiff appears to have acted in good faith.
Plaintiff filed his motion for relief the same day the order
granting the motion for summary judgment was entered.
claims Plaintiff did not negotiate in good faith at the
settlement conference and the hearing date for the motion for
summary judgment was discussed at the conference. ECF No. 37
at PageID.1326. However, Defendant does not provide evidence
of prejudice. Additionally, the assistant in the matter,
Carol Holden, provided an affidavit explaining her error.
Because the Court favors deciding a case on the merits
instead of based on a “slight mistake, ” the fact
that the totality of the five factors weigh in
Plaintiff's favor and Defendant has not provided evidence
of prejudice by the delay, Plaintiff's motion for relief
from judgment will be granted. New scheduling dates for the
case will also be set. Plaintiff will have until Wednesday,
December 11, 2019 to file their response to Defendant's
Motion for Summary Judgment and Defendant will have until
Thursday, December 26, 2020 to reply.
it is ORDERED that Plaintiff's motion
for relief from judgment, ECF No. 34, will be
further ORDERED that the Court's Order,
ECF No. 33, granting Defendant Bridgestone's Motion for
Summary Judgment is vacated.
further ORDERED that Plaintiff shall file a
response to Defendant Bridgestone's Motion for Summary
Judgment, ECF No. 28, by Wednesday, December 11,
2019. Defendant will have until Thursday,
December 26, 2020 to reply.
further ORDERED that costs for Defendant
Bridgestone's response to Plaintiff's motion for
relief are assessed against Plaintiff. Plaintiff is