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Clements v. 3M Electronic Monitoring

United States District Court, M.D. Florida, Fort Myers Division

September 20, 2017

LOUIS MATTHEW CLEMENTS, Plaintiff,
v.
3M ELECTRONIC MONITORING, Defendant.

          OPINION AND ORDER [1]

          SHERIPOLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

          This matter comes before the Court on Plaintiff pro se Louis Matthew Clements' Appeal of Order to Dismiss and Motion to Recuse (Doc. 34) filed on July 6, 2017, which the Court construes as a Motion for Reconsideration under Federal Rule of Civil Procedure 60(b) of this Court's June 29, 2017 Opinion and Order dismissing this case with prejudice as time-barred. (Doc. 32). This filing was initially construed by the Court as a Notice of Appeal to the Eleventh Circuit, and docketed as such (Doc. 34). See Clements v. 3M Monitoring, USCA Number 17-13039-D. It was brought to the Court's attention that the Eleventh Circuit stayed the effectiveness of the Notice of Appeal pending this Court's resolution of the Motion for Reconsideration. See Fed. R. App. P. 4(a)(4).

         “As a general matter, the filing of a notice of appeal deprives the district court of jurisdiction over all issues involved in the appeal.” Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). The filing of a notice of appeal does not, however, “prevent the district court from taking action ‘in furtherance of the appeal, '” id. (quoting Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976)), nor from “entertaining motions on matters collateral to those at issue on appeal, ” id. (citation omitted). Even after the filing of a notice of appeal, district courts retain jurisdiction to entertain or deny a Rule 60(b) motion because the court's action is in furtherance of the appeal. Id. at 1180 (citation omitted). The jurisdiction is limited to denying the Rule 60(b) motion and “following the filing of a notice of appeal district courts do not possess jurisdiction to grant a Rule 60(b) motion.” Id.

Accordingly, a district court presented with a Rule 60(b) motion after a notice of appeal has been filed should consider the motion and assess its merits. It may then deny the motion or indicate its belief that the arguments raised are meritorious. If the district court selects the latter course, the movant may then petition the court of appeals to remand the matter so as to confer jurisdiction on the district court to grant the motion.

Id.

         Therefore, because Plaintiff has filed his Motion for Reconsideration pursuant to Rule 60(b), this Court has jurisdiction to entertain and deny the Motion or indicate its belief the arguments are meritorious.

         A. Reconsideration

         The decision to grant a motion for reconsideration is within the sound discretion of the trial court and will only be granted to correct an abuse of discretion. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). “The courts have delineated three major grounds justifying reconsideration of such a decision:

         (1) an intervening change in controlling law; (2) the availability of new evidence; (3) the need to correct clear error or prevent manifest injustice.” Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). Furthermore, a motion for reconsideration does not provide an opportunity to simply reargue, or argue for the first time, an issue the Court has already determined. Court opinions are “not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). The reconsideration of a previous order is an “extraordinary remedy” and “must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Ludwig v. Liberty Mutual Fire Ins. Co., Case No. 8:03-cv-2378-T-17-MAP, 2005 WL 1053691 at *3 (M.D. Fla. Mar. 30, 2005).

         The Court has reviewed Plaintiff's Motion and determines that it is without merit. Plaintiff does not identify new evidence, point to a change in controlling law or material facts, or show that reconsideration is needed to correct clear error or prevent manifest injustice.

         B. Recusal

         Plaintiff's request to disqualify is based on 28 U.S.C. § 455. Under § 455,

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his ...

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