United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
ALTER OR AMEND THE JUDGMENT AND FOR LEAVE TO AMEND THE
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on plaintiff's
“motion nunc pro tunc to alter or amend
judgment pursuant to Fed.R.Civ.P. 59(e) and 60(b) and for
leave to file a third amended complaint pursuant to Rule
15(a)” [docket entry 79]. Defendants have filed a
response in opposition. Plaintiff has not filed a reply, and
the time for him to do so has expired. Pursuant to E.D. Mich.
7.1(f)(2), the Court shall decide this motion without a
2019, after a long series of delays, plaintiff in this matter
filed a second amended complaint (“SAC”). In
July, defendants Craig, Godbee, Lewis, Walton, Svenkensen,
Williams, Moore, and Lever filed motions for judgment on the
pleadings. In August, the remaining defendants, Hall and
Dolount, filed essentially identical motions. The Court
granted these motions in a series of opinions filed in August
and September on the grounds that the SAC, while lengthy,
failed to allege how, if at all, any of the defendants were
involved in violating any of plaintiff's rights. On
September 13, the Court entered judgment in defendants'
favor, as orders had been entered granting all of the
defendants' motions for judgment on the pleadings.
judgment was entered, plaintiff took no action until November
22, when he filed a motion for leave to file a third amended
complaint. In its December 3 opinion and order denying that
motion, the Court stated:
In the instant motion, filed on November 22, 2019, plaintiff
seeks leave to file a third amended complaint that
“cures that omission or defect by specific reference to
misconduct by each Defendant [who] violated his federally
protected rights . . . [and] to add a count of conspiracy
under 42 USC § 1985(2) . . .” Pl.'s Mot. at
4-5. Defendants oppose the motion on the grounds that the
judgment entered in this matter in September 2019 is res
judicata and the Court lacks jurisdiction to entertain the
Plaintiff correctly notes that the federal courts are
generally quite liberal in permitting amendments to
pleadings, as demonstrated by countless court decisions,
including Foman v. Davis, 371 U.S. 178 (1962).
However, plaintiff fails to acknowledge that a different
standard applies when, as here, the motion seeking leave to
amend is filed after judgment has been entered. As the Sixth
Circuit has explained,
Leave to amend should be “freely given when justice so
requires.” Keweenaw Bay Indian Cmty. v.
Michigan, 11 F.3d 1341, 1348 (6th Cir. 1993) (quoting
Fed.R.Civ.P. 15(a)). A district court, however, may deny
leave to amend for “undue delay, bad faith or dilatory
motive on the part of the movant, ” if allowing an
amendment would place “undue prejudice [on] the
opposing party, ” or if the amendment would be futile.
Morse, 290 F.3d at 800 (quoting Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
Although Rule 15(a) “plainly embodies a liberal
amendment policy, ” Morse, 290 F.3d at 800,
there is a “heavier burden” when requests to
amend are made after an adverse judgment, Leisure
Caviar, 616 F.3d at 616. “Following entry of final
judgment, a party may not seek to amend their complaint
without first moving to alter, set aside or vacate judgment
pursuant to either Rule 59 or Rule 60.” Morse,
290 F.3d at 799. “Instead of meeting only the modest
requirements of Rule 15, the claimant must meet the
requirements for reopening a case established by Rules 59 or
60.” Leisure Caviar, 616 F.3d at 616.
In addition to the Foman factors of undue delay, bad
faith, dilatory motive, undue prejudice, and the futility of
the proposed amendment, post-judgment requests to amend
require that the district court “also take into
consideration the competing interest of protecting the
finality of judgments and the expeditious termination of
litigation.” Morse, 290 F.3d at 800 (internal
quotation marks omitted). This latter inquiry includes asking
whether the claimant has made a “compelling
explanation” for failing to seek leave to amend prior
to the entry of judgment. Leisure Caviar, 616 F.3d
at 617; Morse, 290 F.3d at 800. It is intended to
keep plaintiffs from using the district court “as a
sounding board to discover holes in their arguments, ”
and from avoiding the narrow grounds for post-judgment relief
under Rules 59 and 60. Leisure Caviar, 616 F.3d at
Pond v. Haas, 674 Fed.Appx. 466, 472-73 (6th Cir.
In the present case, 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.
& Order Den. Pl.'s Mot. for Leave to File a Third Am.
Compl. [docket entry 78] at 1-3.
instant motion, filed two weeks after the Court denied his
motion for leave to file a third amended complaint, plaintiff
asks that the Court alter or amend the judgment and permit
him to file a third amended complaint.
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 SAC 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 ...