Mallory v. EyrichMallory v. Eyrich
This appeal seeks reversal of a district court order, entered pursuant to
I.
A.
The underlying action was filed in the district court in 1986 by a group of black residents of Hamilton County, Ohio, challenging the at-large, county-wide scheme on which the election of Hamilton County Municipal Court judges is based. The plaintiffs asserted various claims under the United States Constitution, the Civil Rights Act of 1871,
The parties filed cross-motions for summary judgment on the issue of the applicability of section 2 of the Voting Rights Act to judicial elections. Following briefing and a hearing, the district court agreed with the defendants that section 2 does not apply to judicial elections and, accordingly, entered summary judgment for the defendants. Mallory v. Eyrich, 666 F.Supp. 1060 (S.D.Ohio 1987). On appeal, this court reversed the judgment of the district court, holding that section 2 of the Voting Rights Act does apply to election of judges of the Hamilton County Municipal Court. Mallory v. Eyrich, 839 F.2d 275 (6th Cir.1988).
B.
Following remand and further discovery, the district court set a final pretrial conference date. Immediately prior to that conference the state defendants submitted an offer of judgment pursuant to
The county defendants’ offer of judgment, after reciting proceedings of the Board of Elections, provided as follows:
1. ... the defendant Hamilton County Board of Elections offers Judgment to the plaintiffs on their claim that the statutory procedure by which multiple judicial positions on the Hamilton County Municipal Court are filled through county-wide single judicial district elections, violates the provisions of the Voting Rights Act of 1965, as amended.
2. This offer does not admit liability on any other claims raised by the plaintiffs.
3. This offer extends only to the liability phase of this case and should not be construed as a limitation upon the right of the County Defendants to fully participate during any remedial stage of this case.
Following receipt of the plaintiffs’ acceptance, on September 15, 1989, the clerk entered judgment for the plaintiffs on the “Complaint challenging O.R.C. [Ohio Revised Code] 1908 as violative of Section 2 of the 1965 Voting Rights Act,
After the General Assembly of Ohio failed to address the issue raised by this case, the district court, without conducting a hearing, entered a remedial order on March 30, 1990. This order appointed a special master and instructed the master to divide Hamilton County geographically into fourteen equal judicial districts, three of which were to have a black population of at least 51%. On the same date, the district court, again without a hearing, granted intervention of right to the sitting Hamilton County Municipal Court judges.
The county defendants and the intervening judges appealed the remedy order and the plaintiffs appealed the order granting intervention of right to the judges. In an unpublished order, this court dismissed both appeals as premature.
C.
On April 4, 1990, the county defendants filed a pleading in the district court styled “Defendant Board‘s Request for Relief from Judgment
The district court entered an order giving the plaintiffs an opportunity to show cause in writing why it should not grant the county defendants’ request for relief from judgment. Following receipt of the plaintiffs’ response, in which they raised the issues now relied upon for reversal, the district court granted the county defendants’ motion, stating “the Court determines that the Judgment entered on September 15, 1989, should be and it is hereby set aside as to the Defendant Board of Elections of Hamilton County, Ohio, and such Defendant may participate in all future proceedings in this case.” The plaintiffs filed a timely notice of appeal, and this court assigned an expedited briefing schedule. Following oral argument on November 28, 1990, the appeal was submitted for decision.
II.
The state defendants did not seek relief from the
A.
The defendants have raised a jurisdictional issue, which we will address first. They argue that the order granting relief from the
The defendants maintain that the judgment did not meet the finality requirement of
Of course, the issue is not whether the
This argument overlooks several important facts. First, the defendants relied solely on
B.
Rule 68, as pertinent here, provides:
Rule 68. Offer of Judgment
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
The primary purpose of
Rule 68 has several unique features that distinguish it from other means of compromise and settlement in civil litigation. The primary distinction is its cost-shifting provision. Under the rule, a party defending against a claim may offer to have judgment of liability entered against it. If the adverse party rejects the offer of judgment, and if “the judgment finally obtained by the offeree is not more favorable than the offer,” the offeree must pay the costs incurred after the offer was made. This provision in essence shifts the risk of going forward with a lawsuit to the complainant, who becomes exposed to the prospect of being saddled with the substantial expense of trial. As this court has stated:
The rule encourages settlement by exposing plaintiffs to the possible award of costs should plaintiffs err in the evaluation of their cases. The possibility of substantial cost awards is the sword which encourages plaintiffs to settle.
Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 295 (6th Cir.1989).
Marek v. Chesny, supra, has exposed civil rights plaintiffs to an additional risk in rejecting a
[T]he most reasonable inference is that the term “costs” in
Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority. In other words, all costs properly awardable in an action are to be considered within the scope ofRule 68 “costs.” Thus, absent congressional expressions to the contrary, where the underlying statute defines “costs” to include attorney‘s fees, we are satisfied such fees are to be included as costs for purposes ofRule 68 (citations omitted).... Since Congress expressly included attorney‘s fees as “costs” available to a plaintiff in a Sec. 1983 suit, such fees are subject to the cost-shifting provision ofRule 68 .
Id. at 9, 105 S.Ct. at 3016. Therefore, as was the case in Marek, if the plaintiff in a civil rights action under Sec. 1983 rejects an offer of judgment under
The rule announced in Marek becomes relevant to this case because under
A second distinct feature of
The district court retains no discretion under
Rule 68 to alter the rule‘s sometimes severe application. Operation ofRule 68 is mandatory.Although the district court normally has discretion [under
Fed.R.Civ.P. 54(d) ] as to whether to award costs to the prevailing party, where aRule 68 offer is made and the judgment finally obtained by the plaintiff is not more favorable than the offer, he must pay the costs incurred after the asking of the offer. This language is mandatory; where the rule operates, it leaves no room for district court discretion.
Hopper at 295, quoting in part Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 442 (9th Cir.1982) (emphasis in original); in accord is Johnston v. Penrod Drilling Co., 803 F.2d 867 (5th Cir.1986).
In addition to the mandatory nature of the rule in the award of costs to the offeror,
We agree with the plaintiffs that the clerk was required to enter judgment [under
Rule 68 ].... The clerk refused to enter judgment because the parties had not resolved their dispute on whether “costs” included attorney‘s fees. However,Rule 68 does not condition entry of judgment on the resolution of all issues. It explicitly states, “the clerk shall enter judgment.” (Emphasis added.) Because the court clerk failed to perform the ministerial act of entering judgment, the court should have entered judgment nunc pro tunc.
Oates v. Oates, 866 F.2d 203, 208 (6th Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3163, 104 L.Ed.2d 1025 (1989).
From the foregoing it appears that
Further, even assuming that a
In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Id. [Gillespie ] at 152-54, 85 S.Ct. at 310-12. “The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” In re Exennium [In re Exennium, 715 F.2d 1401 (9th Cir.1983) ] 715 F.2d at 1402-03 (citations omitted).
III.
Having concluded that the
A.
In cases construing
A
We pass finally to consideration of the remaining subsection of
Rule 60(b) which provides for the correction of a judgment “for any other reason justifying relief from the operation of the judgment.”Fed.R.Civ.P. 60(b)(6) . We have held thatRule 60(b)(6) should apply “only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.” Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989) (citing Pierce v. United Mine Workers, 770 F.2d 449, 451 (6th Cir.1985), cert. denied, 474 U.S. 1104, 106 S.Ct. 890, 88 L.Ed.2d 925 (1986); see also Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); United States v. Karahalias, 205 F.2d 331, 333 (2d Cir.1953) (holding thatRule 60(b)(6) may be used to grant relief in case of extreme and undue hardship). Courts, however, must apply subsection (b)(6) only “as a means to achieve substantial justice when ‘something more’ than one of the grounds contained inRule 60(b) ‘s first five clauses is present.” Hopper, 867 F.2d at 294; see also [In re ] Emergency Beacon Corp., 666 F.2d at 758 [2nd Cir.1981].
Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.1990).
After further discussion of
Recently, the Supreme Court has spoken on
Rule 60(b)(6) , upon which respondent relies, grants federal courts broad authority to relieve a party from a final judgment “upon such terms as are just,” provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5). The rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority “adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,” Klapprott v. United States, 335 U.S. 601, 614-615, 69 S.Ct. 384, 390, 93 L.Ed. 266 (1949), while also cautioning that it should only be applied in “extraordinary circumstances,” Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950).Liljeberg [Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) ], supra (footnote omitted). Footnote 11 of Liljeberg discusses Klapprott in further detail:
In Klapprott v. United States, 335 U.S. 601, 613 [69 S.Ct. 384, 389, 93 L.Ed. 266] (1949), we held that a party may “not avail himself of the broad ‘any other reason’ clause of 60(b)” if his motion is based on grounds specified in clause (1)--“mistake, inadvertence, surprise or excusable neglect.” Rather, “extraordinary circumstances” are required to bring the motion within the “other reason” language and to prevent clause (6) from being used to circumvent the 1-year limitations period that applies to clause (1). This logic, of course, extends beyond clause (1) and suggests that clause (6) and clauses (1) through (5) are mutually exclusive. See 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2864 (1973).
Olle v. Henry & Wright, 910 F.2d at 366.
We believe it is clear from the foregoing that the defendants did not present a valid basis for relief from judgment under
IV.
A.
We take judicial notice of several developments in this case since this particular appeal was commenced on June 15, 1990 (there have been approximately a half-dozen interlocutory appeals in this hotly-contested case).
The district court set a hearing to commence on June 25, 1990, inviting counsel to present evidence “[w]ithout limitations upon the matters to be presented by counsel.” It appeared on its face that this order contemplated a hearing on liability as well as remedy. (The district court apparently had withdrawn its previous remedy order appointing a special master who was directed to create fourteen judicial districts.) On June 21 the plaintiffs filed a motion for the presiding judge to recuse himself.
The hearing commenced on June 25 and on June 28 the district court denied the plaintiffs’ motion to reconsider an evidentiary ruling, or to reschedule the hearing. On July 2 the plaintiffs filed an emergency petition for a writ of mandamus or prohibition requesting, among other things, that the district judge be required to recuse himself or at least hold a hearing on the recusal motion. This court denied mandamus and prohibition in an unpublished order, but concluded that the notice of appeal in the present case had divested the district court of jurisdiction to conduct further proceedings. Accordingly, we extended a previously entered stay of proceedings in the district court until further orders of this court in the present appeal.
Following entry of our unpublished order staying the district court, Judge Rubin, to whom the case was originally assigned and who conducted all prior proceedings, entered an order on July 26 “reassigning the case to Chief Judge John D. Holschuh of the United States District Court for the Southern District of Ohio,” presumably for the purpose of assignment to a different judge. Even though unusual in form, the purpose of this order appears to effect Judge Rubin‘s withdrawal from the case. Thus, the motion for recusal is now moot, as all future proceedings will be conducted by the district judge to whom the case is assigned, either by Chief Judge Holschuh or by the Chief Judge of the Sixth Circuit.
B.
As has been noted, the district court granted intervention of right to the Hamilton County Municipal court judges without conducting a hearing or giving the plaintiffs an opportunity to object. The plaintiffs attempted to appeal the intervention order, but this court concluded that the order was interlocutory and not immediately appealable. District courts have inherent power to reconsider interlocutory orders and reopen any part of a case before entry of a final judgment. Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 47-48, 63 S.Ct. 1393, 1414-1418, 87 L.Ed. 1731 (1943). A district court may modify, or even rescind, such interlocutory orders. Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 198, 66 L.Ed. 475 (1922). If the plaintiffs should seek reconsideration of the order granting intervention, the district court has authority to reexamine the question of intervention of right, hold whatever hearings it deems advisable, and redetermine the issue in light of its findings and conclusions.
The plaintiffs also complain that the district court denied their motion for class action certification, even though the defendants did not oppose certification. It seems that any benefit to the plaintiffs in this particular case would be identical whether or not a class is certified. Nevertheless, an order denying class certification “may be altered or amended before the decision on the merits.”
C.
We have dealt with several matters involving the appeal but not directly related to the principal issue in the hope that, following remand, this case will move to a prompt determination on the merits. This is a case in which the eventual cost to the parties and the district court, in time and resources expended, will be less “if we now pass on the questions presented here rather than send the case back with those issues undecided.” Gillespie, 379 U.S. at 153, 85 S.Ct. at 311.
The
The previously granted stay is lifted. Upon remand the district judge to whom the case is assigned will proceed expeditiously to resolve outstanding preliminary matters and to conduct a trial on the remaining issues. Since we have held that the June 15, 1990, notice of appeal transferred jurisdiction over the case to this court, the district court did not have jurisdiction to conduct the hearing that began on June 25. Of course, the parties may agree that evidence taken at that hearing be considered in any future proceedings.
WELLFORD, Circuit Judge, concurring:
I concur in Judge Lively‘s opinion with respect to the effect of
I would now adhere to the following:
Judicial offices and judicial selection processes are sui generis in our nation‘s political system; they determine the referees in our majoritarian political game. These offices are not “representative” ones, and their occupants are not representatives. Indeed, the state processes for filling them need not even be elective, as those for all representative offices presumably must be.... [W]hen Congress determined to expand Section 2 of the Act to incorporate a results test for vote dilution, it stopped short of imposing such a test for judicial offices on the States by limiting it to their election of “representatives.”
I recognize, however, that our decision to the contrary concerning the effect of Section 2 of the Voting Rights Act, reported at 839 F.2d 275 (6th Cir.1988), is the law of the case until overturned by the Supreme Court (or by this court).