Table
of Contents
Certificate of Interested
Persons.................................................................................................. i
Statement Regarding Oral
Argument.......................................................................................... ii
Table of Contents.......................................................................................................................... iii
Table of Authorities................................................................................................................... iv,
v
Statement of Jurisdiction.............................................................................................................. 1
Statement of the Issues
Presented for Review.......................................................................... 1
Did the district court abuse its discretion in denying the Appellant’s Motion to Vacate Judgment? 1
Statement of the Case.................................................................................................................. 1
A. Course of Proceeding and Disposition in the Court Below.............................. 1
B. Statement of Facts................................................................................................ 2
Summary of the Argument............................................................................................................ 3
Argument and Authorities............................................................................................................. 4
I. Standards and Scope of Review......................................................................... 4
II. The District Court Properly Exercised its Discretion in
Denying the Appellant’s Motion to Vacate Judgment................................................................................. 5
Conclusion...................................................................................................................................... 9
Certificate of Service.................................................................................................................. 10
Certificate of Compliance.......................................................................................................... 11
TABLE
OF AUTHORITIES
Cases Page
Aucoin v. K-Mart Apparel
Fashion Corp.,
943 F.2d 6 (5th Cir. 1991)............................................................................................ 4,
5
Boyd v. Biggers,
31 F.3d 279 (5th Cir. 1994).............................................................................................. 6
Godwin v. Federal Savings
and Loan Ins. Corp.,
806 F.2d 1290 (5th Cir. 1987)..................................................................................... 4,
5
Halicki v. Louisiana Casino
Cruises, Inc.,
151 F.3d 465 (5th Cir. 1998)........................................................................................... 5
Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).............................................. 6
National Association of
Government Employees v. City Public Service Board,
40 F.3d 698 (5th Cir. 1984)......................................................................................... 7,
8
Seven Elves, Inc. v.
Eskenazi,
635 F.2d 396 (5th Cir. 1981) .......................................................................................... 4
Travelers Ins. Co. v.
Liljeberg Enterprises, Inc.,
38 F.3d 1404 (5th Cir. 1994) .......................................................................................... 4
Vaughn v. Mobil Oil
Exploration & Prod. Southeast, Inc.,
891 F.2d 1195 (5th Cir. 1990) ........................................................................................ 7
Vela v. Western Electric
Co.,
709 F.2d 375 (5th Cir. 1983). ..................................................................................... 4,
5
Statutes
42
U.S.C. §
2000aa-6................................................................................................................... 1
42
U.S.C. §
2000aa...................................................................................................................... 1
42
U.S.C. § 1986........................................................................................................................... 1
42
U.S.C. § 1985........................................................................................................................... 1
42
U.S.C. § 1983.............................................................................................................. 1,
4, 6, 7
28
U.S.C. § 1291........................................................................................................................... 1
Rules
Fed. R. Civ. P. 60.......................................................................................................................... 2
Fed. R. Civ. P. 60(b)........................................................................................................... passim
Fed. R. Civ. P. 60(b)(1)................................................................................................................. 8
Fed. R. Civ. P. 60(b)(3)................................................................................................................. 8
Fed. R. Civ. P. 12(b)(6)................................................................................................................. 4
TO THE HONORABLE COURT OF
APPEALS:
Appellees Werner Voigt,
Ted Poe, and the State of Texas file this appellate brief by which they would respectfully
show the Court the following:[1]
STATEMENT OF
JURISDICTION
This is an appeal from a
final order denying a Rule 60(b) motion to vacate a judgment in a civil rights
case filed under 42 U.S.C. §§ 1983, 1985, 1986, 2000aa, and 2000aa-6. This Honorable Court has jurisdiction under
28 U.S.C. § 1291.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
Did the district court
abuse its discretion in denying the Appellant’s Motion to Vacate Judgment?
STATEMENT OF THE CASE
A. Course of Proceeding and Disposition in the Court Below.
Edmund B. Heimlich brought
this suit pursuant to the provisions of 42 U.S.C. §§ 1983, 1985, 1986, 2000aa,
and 2000aa-6. He asserted claims for unreasonable
seizure, false arrest, false imprisonment, malicious prosecution, tortious
interference with business relationships and intentional infliction of
emotional distress. R-221. Appellees
Harris County, Texas, John B. Holmes, Jr., John Boone, Baldwin Chin, Stuart W.
Brown, E. W. Godfrey, Judy Beddingfield, and Dennis Ray Kuithe moved for the
dismissal of this action pursuant to the provisions of Rule 12(b)(6) of the
Federal Rules of Civil Procedure on the grounds that the Plaintiff's pleadings
failed to state a claim upon which relief could be granted. R-64, 67, 229, 233. Appellees Werner Voigt, Ted Poe, and the
State of Texas filed an answer to the Plaintiff's Complaint. R-244.
The district court dismissed the Plaintiff's case in its entirety and a
final judgment was entered on February 5, 1997. R-252, 247, 253.
Appellant Heimlich filed a notice of appeal. R-257. The appeal was
dismissed for want of prosecution on May 20, 1997. R-258. On November 2,
2001, Appellant Heimlich filed a motion to vacate the judgment under Rule 60 of
the Federal Rules of Civil Procedure.
R-275. The district court denied
the Appellant's motion. R-279.
Appellant Heimlich perfected his appeal from the district court's ruling. R-281.
B. Statement of Facts.
On August 26, 1993,
Appellant Heimlich, a real estate broker, executed a stop payment order against
a commission check made payable to a sales person named Eric Pettorino. R-208.
When Pettorino attempted to cash the check, he learned of the existence
of the stop payment order. He reported
the matter to the Harris County District Attorney's Office. R-207.
Appellee John B. Holmes, Jr. was the duly elected District Attorney at
that time. Appellee John Boone, an
Assistant District Attorney, presented to a grand jury an indictment against
Appellant Heimlich for theft and misapplication of fiduciary property. R-206.
The grand jury indicted the Appellant. The Appellant was convicted, but
the conviction was later reversed by the Fourteenth Court of Appeals. Heimlich v State of Texas, 988 S.W.2d
382 (Tex. App. - Houston [14th Dist.] 1999, no pet.). The Appellant contends that he was maliciously prosecuted by the
Defendants. SUMMARY OF THE ARGUMENT
A
motion under Rule 60(b) is directed to the sound discretion of the district
court. Denial of relief is reviewed
only for an abuse of that discretion.
Appellees submit that the district court's denial of the Appellant's
Rule 60(b) motion was clearly not an abuse of the court's discretion. Rule 60(b) is not a substitute for a timely
appeal. The record clearly shows that
Appellant Heimlich had the opportunity to appeal the dismissal of his case and
simply failed to prosecute the appeal to completion. Even if the district court made an error of law when it dismissed
Appellant Heimlich's case, the court had the discretion to deny the Rule 60(b)
motion to prevent the Appellant's "end-run" of the normal appellate
process for correcting legal error. Consequently,
the order of the district court denying the Appellant's motion to vacate the
judgment should be affirmed.
ARGUMENT
AND AUTHORITIESI. Standards And Scope of
Review. "Motions under
Rule 60(b) are directed to the sound discretion of the district court, and its
denial of relief upon such motion will be set aside on appeal only for abuse of
that discretion. . . . It is not enough that the granting of relief might have
been permissible, or even warranted -- denial must have been so unwarranted as
to constitute an abuse of discretion."
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.
1981). See also Godwin v.
Federal Savings and Loan Ins. Corp., 806 F.2d 1290 (5th Cir. 1987) (quoted
language from Eskenazi is the "proper standard of review" for
examining the denial of Rule 60(b) motions) and Travelers Ins. Co. v.
Liljeberg Enterprises, Inc., 38 F.3d 1404 (5th Cir. 1994) (denial of a
60(b)(6) motion is reviewed only for an abuse of discretion). Further, "appellate review of the
denial of a Rule 60(b) motion must be narrower in scope tha[n] review of the
underlying order of dismissal so as not to vitiate the requirements of a timely
appeal". Vela v. Western
Electric Co., 709 F.2d 375, 376 (5th Cir. 1983). "The movant must show 'unusual or unique circumstances
justifying such relief,' and . . . may not use Rule 60(b)as 'an avenue for
challenging mistakes of law that should ordinarily be raised by timely
appeal.'" Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d 6, 8
(5th Cir. 1991). Thus, the Court may
not treat the appeal from the ruling on the Rule 60(b) motion as an appeal from
the dismissal order itself. Vela,
709 F.2d at 376.
II. The
District Court Properly Exercised Its Discretion in Denying The Appellant's
Motion to Vacate Judgment.
Appellees
submit that the district court's denial of the Appellant's Rule 60(b) motion
was well within the court's discretion and certainly could not be characterized
as an "abuse" of that discretion.
Appellant Heimlich devotes a considerable portion of his brief to a
discussion of the merits of his Complaint and the propriety of the district
court's dismissal of the case. However,
those issues are not properly before the Court on this appeal. As this Court said in Halicki v.
Louisiana Casino Cruises, Inc., 151 F.3d 465, 471(5th Cir. 1998),
"Rule 60(b) is not a substitute for a timely appeal." The record clearly shows that Appellant
Heimlich had the opportunity to appeal the dismissal of his case and simply
failed to prosecute the appeal to completion.
R-258. Even if the district
court made an error of law when it dismissed Appellant Heimlich's case, the
court had the discretion to deny the Rule 60(b) motion "to prevent [the
Appellant's] end-run of the normal appellate process for correcting legal
error." Halicki, 151 F.3d
at 471. Compare Godwin, 806 F.2d
at 1294 (rule 60(b) may not be used to challenge alleged mistakes of law;
instead, the alleged mistakes should be raised by direct appeal).
Appellant
Heimlich contends that the district court abused its discretion in denying the
motion to vacate the judgment because the judgment is allegedly
"void." In that regard the Appellant contends that the district court
did not have jurisdiction to render a judgment. Although it is not entirely clear in the Appellant's brief,
Appellant Heimlich appears to base his argument on the holding in Heck v.
Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held that
a § 1983 claim for malicious prosecution is not cognizable if the plaintiff's
conviction has not been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas
corpus. However, Heck does not
stand for the proposition that the district court has no subject matter
jurisdiction simply because the § 1983 claim is not cognizable. If that were so, no ruling of any sort other
than a dismissal for want of jurisdiction could be rendered. In Boyd v. Biggers, 31 F.3d 279 (5th
Cir. 1994), this Court determined that the dismissal with prejudice of just
such a § 1983 complaint is appropriate when it is clear that the plaintiff will
never have a claim against the defendant based on the particular facts alleged
even if the plaintiff eventually satisfies the precondition to a valid claim
under Heck. Obviously, if the
court had no subject matter jurisdiction over the case it could not enter a
dismissal with prejudice. Consequently, in the instant case the district court
did have jurisdiction notwithstanding the fact that the § 1983 claim was not
cognizable.
The
Appellant further contends that the district court abused its discretion in
denying the motion to vacate the judgment, because the judgment is allegedly
not final. In that regard, the
Appellant argues that the judgment did not address all claims against all
parties. While it is true that merely
labeling a judgment as final does not make it so, the Memorandum Opinion in
this case makes it quite clear that Judge Hoyt intended to dispose of all
claims against all parties. The opinion
states that "all defendants are entitled to the defense of immunity"
and "[t]he plaintiffs case is dismissed in its entirety." R-247.
Moreover, the court held that the facts of the case did not support a
"custom and practice" violation or a suit based on a violation of the
plaintiff's federal Constitutional rights.
R-248. The court then stated the
following in the judgment:
Pursuant
to the Memorandum Opinion entered in this case, the plaintiff takes nothing by
his suit.
This
is a Final Judgment.R-253. As this
Court said in Vaughn v. Mobil Oil Exploration & Prod. Southeast, Inc.,
891 F.2d 1195, 1197 (5th Cir. 1990), "[t]he intention of the judge is
crucial in determining finality."
If the judgment reflects an intent to dispose of all issues before the
district court, this Court characterizes that judgment as final. National Association of Government
Employees v. City Public Service Board, 40 F.3d 698, 705 (5th Cir.
1984). Thus, there is no ambiguity
concerning the finality of the judgment in this case.
In
any event, it is totally inconsistent for the Appellant to contend that the
judgment is not final when arguing that the district court abused its
discretion in refusing to grant a Rule 60(b) motion. By its own terms Rule 60(b) authorizes a court to relieve a party
only from a final judgment, order, or proceeding. Obviously, if the judgment in this case were not final, Rule
60(b) would be completely inapplicable. Yet the denial of the Rule 60(b) motion
is the only matter brought forth for review on this appeal. Consequently, the Appellant's argument that
the judgment is not final is simply self-defeating.
Finally,
Appellant Heimlich contends that the district court abused its discretion in
denying the motion to vacate the judgment pursuant to Rule 60(b), (1), and
(3). However, the argument presented
under this issue does not appear to relate to either reason (1) or (3) and does
not present any matter reflecting reversible error. In any event, a motion made
for reasons (1) and (3) must be made "not more than one year after the
judgment, order, or proceeding was entered or taken." Fed. R. Civ. P. 60(b). In the instant case the motion to vacate the
judgment was filed more than four years after the entry of judgment.