United States District Court, E.D. Kentucky, Northern Division, Ashland
APRIL MILLER, et al. PLAINTIFFS
KIM DAVIS, individually and in her official capacity, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. Banning United States District Judge
matter is before the Court upon Third-Party Defendants
Governor Matthew G. Bevin and Commissioner of the Kentucky
Department for Libraries and Archives Terry Manuel's
Motion to Amend. (Doc. # 208). Specifically, the Third-Party
Defendants ask the Court to amend its July 21, 2017
Memorandum Opinion and Order (Doc. # 206)- which ordered the
Commonwealth of Kentucky to pay Plaintiffs'
attorneys' fees and costs-and instead, assess the award
against Defendant Kim Davis in her official capacity and the
entity she represents, the Office of the Rowan County Clerk.
April Miller, Karen Roberts, Shantel Burke, Stephen Napier,
Jody Fernandez, Kevin Holloway, Aaron Skaggs, and Barry
Spartman (collectively “Plaintiffs”), Defendant
Rowan County, Kentucky, and Defendant Kim Davis each having
filed their Responses in opposition to the Motion (Docs. #
213, 214, and 217), and Third-Party Defendants having filed
their Reply (Doc. # 220), the matter is ripe for the
FACTUAL AND PROCEDURAL BACKGROUND
21, 2017, the Court granted Plaintiffs' Motion for
Attorneys' Fees and Costs, which brought this § 1983
litigation to a close. (Doc. # 206). In that Memorandum Opinion
and Order, the Court answered three questions. First, did
Plaintiffs “prevail” within the meaning of §
1988? Second, who pays? And third, how much? The answers
were: yes, the Commonwealth of Kentucky, and, $224, 703.08,
respectively. In the instant Motion, Governor Bevin and
Commissioner Manuel challenge the answer to the second
question: that Defendant Kim Davis, in her official capacity
as Rowan County Clerk, represented the Commonwealth of
Kentucky with respect to issuing-or refusing to
issue-marriage licenses and therefore, the Commonwealth was
liable for Plaintiffs' attorneys' fees and costs. For
the reasons stated herein, Third-Party Defendants' Motion
to Amend (Doc. # 208) is denied.
Standard of Review
Defendants styled their Motion as one pursuant to Rule 59(e);
however, “by its own terms, ” Rule 59(e)
“applies only to judgments.” Dierig v. Lees
Leisure Indus., Ltd., No. 2:11-cv-125-DLB, 2012 WL
669968, *2 (E.D. Ky. Feb. 28, 2012). Rule 60, by contrast,
applies to both judgments and final orders. Fed.R.Civ.P. 60.
Because Rule 60 provides the appropriate means for
considering the relief requested, the Court will review
Third-Party Defendants' Motion to Amend under Rule 60.
60(b) allows the Court to grant relief from a final judgment
or order due to: (1) mistake; (2) newly discovered evidence;
(3) fraud; (4) a void judgment; (5) a satisfied judgment; or
(6) any other reason that justifies relief. Fed.R.Civ.P.
60(b). Although courts have considerable discretion in
granting relief from a final judgment or order pursuant to
Rule 60(b), that power is “circumscribed by public
policy favoring finality of judgments and termination of
litigation.” Blue Diamond Coal Co. v. Trustees of
UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.
2001). Therefore, “relief under Rule 60(b) is …
extraordinary.” Zucker v. City of Farmington
Hills, 643 F. App'x 555, 562 (6th Cir. 2016).
Third-Party Defendants do not predicate their motion on
grounds of newly discovered evidence, fraud, or a void or
satisfied judgment. Instead, they claim that the Court's
July 21, 2017 Memorandum Opinion and Order constitutes a
clear error of law and is manifestly unjust. (Doc. # 208-1 at
Relief under Rule 60(b) is not warranted.
threshold matter, the Court notes that a Rule 60(b) motion is
not the proper vehicle to raise arguments that should have
been raised before. “Rule 60(b) does not allow a
defeated litigant a second chance to convince the court to
rule in his or her favor by presenting new explanations,
legal theories, or proof.” Tyler v. Anderson,
749 F.3d 499, 509 (6th Cir. 2014). Nor does Rule 60(b)
“provide relief from the consequences of a deliberate
choice, even if subsequent events reveal the choice to have
been unwise.” Park W. Galleries, Inc. v.
Hochman, 692 F.3d 539, 545 (6th Cir. 2012). The
Third-Party Defendants not only failed to raise these
specific arguments in response to Plaintiffs' Motion for
Attorneys' Fees and Costs, but elected not to participate
in the briefing of Plaintiffs' Motion for Attorneys'
Fees and Costs at all. (Doc. # 206 at 24).
Defendants' claims that they had been
“dismissed” from this action and that “no
relief was sought against them in the Petition for
Attorneys' Fees” are belied by the
record. (Doc. # 220 at 3). Third-Party Defendants
were not dismissed from this action by way of a dispositive
motion. Rather, the entire case was dismissed and stricken
from the Court's active docket. (Doc. # 182). Upon the
filing of Plaintiffs' Motion for Attorneys' Fees and
Costs (Doc. # 183), the case was revived for that limited
purpose (Doc. # 184), and briefing commenced. Third-Party
Defendants were no less a party than Plaintiffs, Defendant
Kim Davis, or Defendant Rowan County.
of that lack of participation, Defendant Rowan County argues
that Third-Party Defendants' Motion to Amend is
procedurally improper and should be denied because they had
the opportunity to raise their arguments earlier and failed
to do so. (Doc. # 214 at 1-2). The Court agrees that
Third-Party Defendants could have-and should have-raised
these arguments earlier. However, because the purpose of Rule
60(b) is to provide courts an opportunity to
“reconsider its judgment when that judgment rests on a
defective foundation, ” the Court will exercise an
abundance of caution and consider Third-Party Defendants'
arguments. In re Abdur'Rahman, 392 F.3d 174, 179
(6th Cir. 2004), vacated on other grounds, 545 U.S.
1151 (2005); see also Charter Twp. of Muskegon v. City of
Muskegon, 303 F.3d 755, 760 (6th Cir. 2002) (“The
general purpose of Rule 60(b) … is to strike a proper
balance between the conflicting principles that litigation
must be brought to an end and that justice must be
No legal error was committed.
Rule 60(b)(1), a court can vacate a final judgment or order
because of “mistake, inadvertence, surprise, or
excusable neglect.” The Sixth Circuit has explained
that “a Rule 60(b)(1) motion is intended to provide
relief in only two situations: (1) when a party has made an
excusable mistake or an attorney has acted without authority,
or (2) when the judge has made a substantive mistake of law
or fact in the final judgment or order.” United
States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002)
(citing Cacevic v. City of Hazel Park, 226 F.3d 483,
490 (6th Cir. 2000)); see also Pierce v. UMWA Welfare
& Ret. Fund ...