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Smith v. Desoto County Sheriff Dept.

United States District Court, N.D. Mississippi, Oxford Division

April 23, 2018

FREDERICK SMITH PLAINTIFF
v.
DESOTO COUNTY SHERIFF'S DEPT., SHERIFF BILL RASCO, DEPUTY CHARLES MOHON, 4 UNKONWN DEPUTIES, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF MISSISSIPPI

         These matters come before the court on the plaintiff Frederick Smith's motion to void judgment order [27], motion for recusal [34], and motion for counter-sanctions against counsel [30]. The defendants have not responded to any of the three motions currently before the court. The court has considered these motions, as well as the applicable law, and is now prepared to rule.

         Background

         The plaintiff Frederick Smith was evicted from his home located at 7601 Broken Hickory Drive, Walls, Mississippi 38680. Prior to the instant cause, multiple adjudications have found that the foreclosure and subsequent eviction of the plaintiff from the property was valid, yet the plaintiff filed no less than seven causes of action centering on this property and its foreclosure or his eviction from the property. The instant cause has been adjudicated in favor of the defendants under the doctrine of res judicata, and sanctions have been issued against the plaintiff for filing frivolous and vexatious pleadings.

         Discussion

         A) Motion to Void Judgment Order

         Under Rule 59 of the F.R.C.P., a motion to alter or amend a judgment must be filed no later than twenty-eight (28) days after the entry of the judgment. Final judgement in the present cause was entered on August 14, 2017, and the instant motion to void that final judgment was filed in the docket on September 20, 2018, thirty-seven (37) days after the issuance of the final judgment order. However, even though the plaintiff is beyond the twenty-eight (28) day deadline imposed by Rule 59, the motion could still be granted under Rule 60, should the statute apply. A motion made under Rule 60 must be made within a reasonable time, but not more than one year after the date of the entry of the judgment for three of the six provided allowable reasons. Fed. R. Civ. Pro. 60(c)(1).

         The court has read the entirety of the plaintiff's thirty-one (31) page motion to void judgment, and is prepared to assess the merits of that motion under Rule 60 of the Federal Rules of Civil Procedure. Rule 60 allows that this court may issue an order relieving a party from a final judgment on motion with just terms for any of the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) The judgment is void;
(5) The judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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