                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 07a0571n.06
                                 Filed: August 9, 2007

                                            No. 06-3190


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

MARK D. BROACH, et al.,

        Plaintiffs-Appellants,

v.                                                      ON APPEAL FROM THE UNITED
                                                        STATES DISTRICT COURT FOR THE
CITY OF CINCINNATI, et al.,                             SOUTHERN DISTRICT OF OHIO

        Defendants-Appellees.

                                                 /




BEFORE:         MARTIN, BATCHELDER, and CLAY, Circuit Judges.

        CLAY, Circuit Judge. This case arose when Plaintiffs, Mark D. Broach et al., filed a §

1983 suit against Defendants, the City of Cincinnati et al., alleging violations of their First and

Fourteenth Amendment rights under the U.S. Constitution, as well as various pendent Ohio state law

claims. Today, however, we face only one discrete procedural issue. On appeal, Plaintiffs challenge

the district court’s order denying their Rule 60(b) motion for relief from the district court’s previous

entry of summary judgment in Defendants’ favor. For the reasons that follow, we AFFIRM.

                                          BACKGROUND

        A.      Substantive Facts
                                            No. 06-3190

       Plaintiffs are black firefighters who work (or worked) full-time in Defendant City of

Cincinnati’s fire division. In August 1999, Defendant Kappa, the EMS Coordinator for Defendant

City of Cincinnati, learned that the State of Ohio could not locate Emergency Medical Technician

(“EMT”) certification records for over 200 firefighters from the Cincinnati Fire Department

(“CFD”). Apparently, the loss of these certification records – and others – resulted from a

discrepancy in the State of Ohio’s record-keeping. Through an agreement with the State, those

affected firefighters were permitted to complete renewal applications to gain re-certification as

EMTs without “challenging” the State’s reinstatement exam. The State mailed renewal applications

directly to the firefighters’ homes for completion, and the affected firefighters were given a finite

period of time to complete and return the renewal applications.

       Approximately 50 Cincinnati firefighters failed to submit their renewal applications to the

State within the allotted time. This group consisted of both black and white firefighters. On the

record before us, it appears that CFD instructed these 50 firefighters to contact the State in order to

challenge the reinstatement exam.        Most of this group followed through, challenging the

reinstatement exam and regaining their EMT certification. Some of the firefighters either declined

to challenge the reinstatement exam, or challenged the exam and failed. According to the Cincinnati

Fire Department’s Policies on Work Schedule and Duties, “[a] minimum mandatory requirement of

employment for all uniformed members of the Fire Division is an [Emergency Medical Technician

(“EMT”)]-Basic certification.” (J.A. at 62) Additionally, the Policies state that “[e]xpired EMT

Certifications due to a member’s negligence will cause the member to lose their EMT Certification

pay and administrative disciplinary action that could lead to dismissal will be initiated against the


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                                            No. 06-3190

member.” (Id.) Ultimately, those firefighters who did not regain EMT certification lost their EMT

certification pay, which amounts to one percent of their salary, were subject to disciplinary action,

including written reprimands, and were warned that they could be dismissed.1

       B.      Procedural Facts

       On October 22, 2002, Plaintiffs brought a § 1983 suit in federal district court against

Defendants alleging violations of their First and Fourteenth Amendment rights, as well as state law

claims of conspiracy, invasion of privacy, interference with contractual relations, and intentional

infliction of emotional distress. Therein, Plaintiffs alleged that

       Plaintiffs attempted to contact the State Board of EMS to secure their certificates, but
       were ordered by officials in the Fire Division to discontinue that effort. Plaintiffs
       were told that if they continued to attempt to resolve their certification problems
       through the State Board of Emergency Medical Service they would be subject to
       disciplinary action to include termination. EMS Coordinator Michael Kappa and
       Chief Kroeger specifically forbade Plaintiffs from contacting the State Board of
       EMS, under the pain of possible termination.

(J.A. at 21-22) Plaintiffs additionally averred that a policy existed to prevent them “from pursuing

their EMT license (recertification), already earned by refresher course and examination,” and that

Defendant Wright instituted the policy.2 (Id. at 23)



       1
         Incidentally, as of January 28, 2003, nearly all Plaintiffs had regained their certification.
Only Plaintiffs Thompson and Wilson had not yet regained certification at that time. Plaintiff
Thompson has apparently now been re-certified, while Defendants dismissed Plaintiff Wilson for
failure to regain his EMT certification.
       2
         Defendants deposed several of Plaintiffs, and the record before this Court contains incredibly
brief parts of those deposition transcripts. On the whole, the record reflects that Plaintiffs could not
articulate the factual basis for their claims against Defendants and, specifically, could not identify
how Defendants had treated black and white firefighters differently with respect to EMT
certification.

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                                           No. 06-3190

       On May 9, 2003, Defendants filed a motion to dismiss, which the district court subsequently

denied. A scheduling order entered December 8, 2004 by the district court initially set a deadline

of February 28, 2005 for Defendant to file a motion for summary judgment. On January 25, 2005,

Defendants brought a motion to compel discovery. An affidavit attached to Defendants’ motion to

compel reflects that depositions of Plaintiffs McConnell and Price were initially noticed and

scheduled for November 10, 2004, but Plaintiffs’ counsel notified Defendants a few days before the

scheduled depositions that Plaintiffs would be unavailable. Plaintiffs’ counsel apparently promised

to provide potential deposition dates, but did not. Defendants, in a letter dated December 8, 2004,

requested possible deposition dates for those Plaintiffs, but Plaintiffs’ counsel did not respond.

Hearing nothing from Plaintiffs’ counsel, Defendants again scheduled and noticed the depositions

for January 24, 2005, but neither Plaintiffs nor their counsel appeared. Plaintiffs did not oppose

Defendants’ motion to compel.

       The district court granted Defendants’ motion to compel on February 15, 2005. The district

court’s order gave Defendants 30 days to reschedule and conduct those depositions, and noted

“[f]ailure to comply shall result in the depositions being conducted at the Courthouse under the

supervision of the Court.” (J.A. at 100-101) Critically, on February 24, 2005, nine days later, the

district court extended the deadline for Defendants to file a motion for summary judgment to April

29, 2005, because Defendants would otherwise “not have sufficient time to take the depositions and

prepare [their] Motion for Summary Judgment prior to the previously established . . . deadline.” (Id.

at 102) In so doing, the district court referred to its recent order granting Defendants’ motion to

compel.


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                                             No. 06-3190

       Defendants filed their motion for summary judgment on April 29, 2005. Plaintiffs wholly

failed to respond to Defendants’ timely motion, whether by filing a motion in opposition, a Rule

56(f) affidavit, or motion to continue for purposes of discovery. Nearly two months later, on June

28, 2005, the district court granted Defendants’ motion for summary judgment. Subsequently,

Plaintiffs filed a Rule 60(b) motion for relief from judgment on August 26, 2005. The district court

denied Plaintiffs’ motion on November 23, 2005. Plaintiffs timely appealed.

                                           DISCUSSION

I.     WHETHER THIS COURT LACKS JURISDICTION TO CONSIDER PLAINTIFFS’
       CHALLENGE TO THE SUMMARY JUDGMENT ORDER

       In their brief on appeal, Plaintiffs argue that the district court abused its decision in modifying

the scheduling order and in ultimately granting Defendants’ summary judgment motion “sua sponte.”

However, we lack jurisdiction to consider these claims.

       Plaintiffs did not appeal the district court’s June 28, 2005 order granting Defendants’ motion

for summary judgment. Rather, nearly two months later, on August 26, 2005, Plaintiffs filed a Rule

60(b) motion for relief from judgment. On November 23, 2005, the district court denied this motion.

On December 22, 2005, Plaintiffs filed a notice of appeal only from the district court’s November

23, 2005 order denying their Rule 60(b) motion for relief from judgment. Because appeal from a

Rule 60(b) denial does not expose the underlying judgment to review, see Hood v. Hood, 59 F.3d

40, 42 (6th Cir. 1995), Plaintiffs’ December 22, 2005 notice of appeal fails to properly place before

us challenges to the district court’s grant of summary judgment.

       A motion for relief under Rule 60(b), when filed no later than 10 days after the district court

enters the underlying judgment, tolls the 30 day deadline for filing a notice of appeal until the court

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                                            No. 06-3190

rules on the Rule 60(b) motion. Fed. R. App. P. 4(a)(4)(A)(vi). Had Plaintiffs filed their Rule 60(b)

motion no later than July 8, 2005, the time for filing a notice of appeal from the order granting

summary judgment would arguably have been tolled, and the district court’s November 23, 2005

order would have triggered anew the period for filing a notice of appeal. Cf. Inge v. Rock Fin. Corp.,

281 F.3d 613, 617-18 (6th Cir. 2002). The simple fact, of course, is that Plaintiffs waited nearly two

months to file their Rule 60(b) motion. Accordingly, we need not consider whether, in their

December 22, 2005 notice of appeal, Plaintiffs sought review of the district court’s June 28, 2005

order granting summary judgment. To even entertain the possibility would be to open a back door

to appellate review for parties who failed to timely secure it pursuant to the Federal Rules of

Appellate Procedure. This we cannot do.3 We thus proceed to consider the only issue properly

before us.

II.    WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING
       PLAINTIFFS’ RULE 60(b) MOTION

       A.      Standard of Review

       We review for abuse of discretion a district court’s denial of a Rule 60(b) motion for relief

from judgment. Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). Abuse of discretion

occurs where the district court relied on clearly erroneous findings of fact, or when it improperly

applied the law or used an erroneous legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615

(6th Cir. 1995). We typically find abuse of discretion “only where there is a ‘definite and firm




       3
         In any event, we note that these challenges lack merit inasmuch as Plaintiffs failed to
diligently conduct themselves throughout the course of litigation in the district court below.

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                                            No. 06-3190

conviction that the trial court committed a clear error of judgment.’” Jinks, 250 F.3d at 385 (quoting

Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129, 133 (6th Cir. 1990)).

       B.      District Court’s Denial of Plaintiffs’ Rule 60(b) Motion

       Plaintiffs contend that the district court abused its discretion in denying their Rule 60(b)

motion. Under Rule 60(b)(1), Plaintiffs allege mistake, inadvertence, surprise, and excusable neglect

warrant relief. Specifically, Plaintiffs (1) attribute legal error to the district court’s decision to

modify the scheduling order purportedly absent good cause,4 and to rule on Defendants’ summary

judgment motion,5 which Plaintiffs characterize as “out of time;” (2) contend that the initial

scheduling order led Plaintiffs to believe that they would be permitted to continue discovery long

after the deadline for summary judgment motions passed, apparently without need to file a motion


       4
         Any challenge to the district court’s decision to modify its scheduling order is not properly
before us. Nevertheless, we note that district courts have discretion to modify initial scheduling
orders upon a showing of good cause, see Fed. R. Civ. P. 16(b), a standard typically measured by
“the moving party’s diligence in attempting to meet the case management order’s requirements.”
Inge, 281 F.3d at 625. Defendants’ motion to compel demonstrated to the district court that good
cause existed to reset the summary judgment deadline since, notwithstanding Defendants’ diligence,
they could not depose Plaintiffs before the initial deadline for summary judgment motions had
passed. Had Plaintiffs been concerned with the propriety of the modified scheduling order, or in the
event of any confusion as to the district court’s intent, Plaintiffs could have contacted the district
court to clarify the court’s expectations or to formally oppose the modification. They did not.
       5
         Plaintiffs’ implicit claims that the district court abused its discretion in granting summary
judgment when it did are also not properly before us. Yet, even if they were, Plaintiffs could not
show an abuse of discretion. “[D]istrict courts are widely acknowledged to possess the power to
enter summary judgment sua sponte, so long as the losing party was on notice that she had to come
forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Plaintiffs
had notice under Federal Rule of Civil Procedure 56, Southern District of Ohio Civil Rule 7.2(a)(2),
the district court’s order extending the time to file summary judgment motions, and Defendants’
motion for summary judgment which, incidentally, was timely filed under the modified schedule.
Any attempts to attribute lack of notice to confusion must necessarily fail inasmuch as Plaintiffs
apparently made no attempt to clarify the court’s expectations.

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                                                No. 06-3190

in opposition or, indeed, motions of any kind; and (3) attribute confusion to the different deadlines

provided therein for summary judgment motions and dispositive motions.6 In sum, Plaintiffs say,

their counsel “was completely without notice that the court would rule” on Defendants’ summary

judgment motion. (Pl.’s Br. at 6) Plaintiffs raised many of these same arguments before the district

court below. On appeal, Plaintiffs additionally invoke Rule 60(b)(6).

        The district court denied Plaintiffs’ Rule 60(b) motion, finding that their “rationale for delay

rests on an unreasonable reading of the [scheduling] order, as well as inexcusable ignorance of th[e]

Court’s local rules.” (J.A. at 136-37) Additionally, the district court concluded that “Plaintiffs failed

to establish mistake, inadvertence, or surprise” inasmuch as “[t]he mistake of relying on a shaky

interpretation of the Order and the ‘surprise’ of th[e] Court’s Opinion granting Defendant’s [sic]

Motion for Summary Judgment are not bases for a remedy based on mistake, inadvertence, or

surprise.” (Id. at 138-39) Plaintiffs did not rely on Rule 60(b)(6) in the court below and, thus, the

district court’s opinion makes no mention of that provision. We agree with the district court that

Plaintiffs’ arguments lack merit, and find that the district court did not abuse its discretion.

        Federal Rule of Civil Procedure 60(b) provides:

        On motion and upon such terms as are just, the court may relieve a party or a party’s
        legal representative from a final judgment order, or proceeding for the following
        reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any
        other reason justifying relief from the operation of the judgment.

Parties cannot employ Rule 60(b) “as a substitute for an appeal, . . . or as a technique to avoid the

consequences of decisions deliberately made yet later revealed to be unwise.” Hopper v. Euclid


        6
            Paradoxically, Plaintiffs later “contend that the Scheduling Order is crystal clear.” (Pl.’s Br.
at 8)

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                                            No. 06-3190

Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989) (internal citations omitted). Rather,

Rule 60 is designed to provide relief only where “the party has made an excusable litigation mistake

or an attorney in the litigation has acted without authority; or . . . when the judge has made a

substantive mistake of law or fact in the final judgment or order.” Cacevic v. City of Hazel Park,

226 F.3d 483, 490 (6th Cir. 2000). Plaintiffs’ invocation of Rule 60(b) more closely resembles “a

substitute for an appeal,” as Plaintiffs point to no “excusable” mistakes and no legal or factual error

in the district court’s final order.

        Kendall v. The Hoover Co., 751 F.2d 171, 173 (6th Cir. 1984), proves instructive in the case

at hand. There, the plaintiff challenged the district court’s denial of a Rule 60(b) motion, brought

on the basis that the district court improperly granted summary judgment “without a hearing or

notice that this matter was under consideration by the court.” Id. At the basis of his Rule 60(b)

motion, plaintiff argued that opposing counsel and the court should have made “reasonable

assumptions” about “plaintiff’s need for additional time” for discovery and responsive motions. Id.

at 175. The Kendall court adopted the reasoning of the district court in that case, stating “[t]he

failure to respond to a motion for summary judgment or to request an extension of time to file a

response thereto is inexcusable neglect.” Id. (emphasis added).

        In the instant case, Plaintiffs never did respond to Defendants’ motion for summary

judgment, much less within the 21 day limit for memoranda in opposition established by local rule.

See S.D. Ohio Civ. R. 7.2(a)(2). Like the plaintiff in Kendall, Plaintiffs additionally declined to file

any type of motion to continue or a Rule 56(f) affidavit to demonstrate the need for additional

discovery. Instead, Plaintiffs apparently chose to ignore the district court’s order extending the time


                                                   9
                                            No. 06-3190

for Defendants to file a summary judgment motion, and made their deliberate ignorance the basis

of a claim that they had no notice that the district court was entertaining Defendants’ summary

judgment motion. Thus, Plaintiffs cannot rely on claims of “mistake, inadvertence, surprise, or

excusable neglect.” See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392

(1993) (“[I]gnorance of the rules . . . do[es] not usually constitute ‘excusable’ neglect.”); McCurry

v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 593 (6th Cir. 2002) (“[N]either strategic

miscalculation nor counsel’s misinterpretation of the law warrants relief from a judgment.”); Rice

v. Consol. Rail Corp., No. 94-3963, 1995 WL 570911, at *4 (6th Cir. Sept. 27, 1995) (unpublished)

(“[E]ven though plaintiffs believed that defendant’s motion would not be ruled upon until after the

conclusion of discovery, this in no way negated their obligation to respond to the motion.”); B & D

Partners v. Pastis, No. 05-5954, 2006 WL 1307480, at *3 (6th Cir. May 9, 2006) (unpublished)

(“[W]hen inadvertent conduct leads to a judgment, a claim of mistake or excusable neglect will

always fail if the facts demonstrate a lack of diligence.”).

       Under the district court’s order modifying the schedule, of which Plaintiffs clearly had notice,

Defendants timely filed their motion for summary judgment. The record reflects that Defendants

served Plaintiffs with a copy of their motion for summary judgment. Being served with the motion,

Plaintiffs “were put on notice that some action was expected of them.” See Rice, 1995 WL 570911,

at *5. That the district court would rule on a timely motion nearly two months after filing should

come as no surprise. Nor should the district court’s expectation that Plaintiffs would comply with

local rules for filing responsive documents. See id. at *4 (“An attorney is charged with knowing and

understanding the rules of the courts in which he practices.”). “Rule 60 was not intended to relieve


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                                            No. 06-3190

counsel of the consequences of decisions deliberately made, although subsequent events reveal that

such decisions were unwise.” Federal’s Inc. v. Edmonton Inv. Co., 555 F.2d 577, 583 (6th Cir.

1977).

         Lastly, Plaintiffs waived any argument pursuant to Rule 60(b)(6), which permits the district

court to grant relief from judgment for “any other reason justifying relief,” by failing to raise it

below. Even if Plaintiffs did not waive their Rule 60(b)(6) argument, it too fails on the merits.

“Rule 60(b)(6) should apply ‘only in exceptional or extraordinary circumstances which are not

addressed by the first five numbered clauses of the Rule,’” Olle v. The Henry & Wright Corp., 910

F.2d 357, 365 (6th Cir. 1990), and “where principles of equity mandate relief.” Blue Diamond Coal

Co. v. Tr. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001) (emphasis

added). Plaintiffs simply cannot show any “exceptional or extraordinary circumstances” warranting

relief under Rule 60(b)(6), nor does equity require it. See McCurry, 298 F.3d at 596 (finding

“straightforward claims of attorney error and strategic miscalculation[] do not satisfy this rigorous

standard”). Consequently, we hold the district court did not abuse its discretion in denying

Plaintiffs’ motion for relief from judgment.

                                          CONCLUSION

         For the foregoing reasons, we AFFIRM.




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