                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 18a0069p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 JANE LUNA, as Administratrix of the Estate of Charles   ┐
 Jason Toll,                                             │
                                                         │       Nos. 17-5608/5675
                       Plaintiff-Appellant (17-5608),
                        Plaintiff-Appellee (17-5675),    │
                                                          >
                                                         │
        v.                                               │
                                                         │
                                                         │
 RICKY J. BELL; GAELAN DOSS; JAMES HORTON,               │
                     Defendants-Appellees (17-5608),     │
                    Defendants-Appellants (17-5675).     │
                                                         ┘

                         Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville.
                    No. 3:11-cv-00093—John T. Nixon, Todd J. Campbell,
                          and Aleta Arthur Trauger, District Judges.

                                   Argued: February 1, 2018

                               Decided and Filed: April 5, 2018

                   Before: MERRITT, MOORE, and BUSH, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: David J. Weissman, RAYBIN & WEISSMAN, P.C., Nashville, Tennessee, for
Appellant in 17-5608 and Appellee in 17-5675. Leslie Ann Bridges, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees in 17-5608 and
Appellants in 17-5675. ON BRIEF: David J. Weissman, RAYBIN & WEISSMAN, P.C.,
Nashville, Tennessee, Jeff Roberts, JEFF ROBERTS & ASSOCIATES, PLLC, Nashville,
Tennessee, for Appellant in 17-5608 and Appellee in 17-5675. Leslie Ann Bridges, Steven A.
Hart, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellees in 17-5608 and Appellants in 17-5675.
 Nos. 17-5608/5675                            Luna v. Bell et al.                                       Page 2


                                            _________________

                                                  OPINION
                                            _________________

        KAREN NELSON MOORE, Circuit Judge. Defendants Ricky J. Bell (“Bell”), Gaelan
Doss (“Doss”), and James Horton (“Horton”) (together, “Defendants”) appeal the first district
court’s1 order granting Plaintiff Jane Luna (“Luna”), as Administratrix of the Estate of Charles
Jason Toll (“Toll”), deceased, relief under Federal Rule of Civil Procedure 60(b)(2);
additionally, Defendants appeal the second district court’s and the third district court’s denials of
Defendants’ requests to reconsider the order granting Luna relief under Rule 60(b)(2). Luna
appeals the third district court’s order granting summary judgment to Defendants.

        For the reasons discussed below, we AFFIRM the first district court’s order granting
Luna relief under Rule 60(b)(2) from the judgments and from the order denying a new trial. We
also AFFIRM the orders denying Defendants’ requests to reconsider. Lastly, we REVERSE
the third district court’s order granting summary judgment to Defendants, and we REMAND for
further proceedings consistent with this opinion.

                                            I. BACKGROUND

        In August 2010, Toll was in solitary confinement at Riverbend Maximum Security
Institution (“Institution”), when he allegedly threw liquid at a correctional officer. R. 52 (Am.
Compl. ¶¶ 3, 8, 19, 21) (Page ID #237, 238, 240). Because of this incident, Horton, the shift
commander, decided to extract Toll from his cell. Id. ¶¶ 23, 32 (Page ID #240, 241). Once the
cell extraction team, which included Doss and Horton, removed Toll from his cell, Toll became
unresponsive. Id. ¶¶ 2, 32, 57 (Page ID #237, 241, 246). An ambulance transported Toll to a
hospital, where a doctor pronounced him dead. Id. ¶ 65 (Page ID #247).


        1
           Three district court judges oversaw this action. District Judge Nixon was the original judge. R. 31
(Order) (Page ID #107). However, because Judge Nixon recused himself in 2015, District Judge Campbell took
over. R. 188 (Order) (Page ID #1472); R. 189 (Order) (Page ID #1473). Then, in 2016, because of Judge
Campbell’s retirement, District Judge Trauger received the action. R. 262 (Order) (Page ID #3572). For clarity, we
will refer to Judge Nixon’s oversight as “the first district court,” to Judge Campbell’s oversight as “the second
district court,” and to Judge Trauger’s oversight as “the third district court.”
 Nos. 17-5608/5675                     Luna v. Bell et al.                                Page 3


       Because of Toll’s death, Toll’s mother, Luna, asserted two claims under 42 U.S.C.
§ 1983 against Defendants. R. 1 (Compl.) (Page ID #1). Luna sued Horton and Doss in their
individual capacities for excessive force. R. 52 (Am. Compl. ¶¶ 2, 94–111) (Page ID #237, 251–
54). She also asserted a failure-to-train claim against Bell, who is or was the warden, in his
individual capacity. Id. ¶¶ 4, 112–23 (Page ID #237, 254–56).

       In August 2013, the first district court held a jury trial regarding both claims. R. 157
(Verdict) (Page ID #994); R. 166 (Min. Entry) (Page ID #1010). At the end of this trial, the jury
delivered a favorable verdict for Defendants on all counts. R. 157 (Verdict) (Page ID #994); R.
160 (Verdict) (Page ID #1000); R. 161 (Verdict) (Page ID #1002). In light of the jury’s findings,
the first district court entered judgments in favor of Defendants. R. 162 (J.) (Page ID #1004); R.
163 (J.) (Page ID #1005); R. 164 (J.) (Page ID #1006).

       After the trial, Luna moved for a new trial under Federal Rule of Civil Procedure 59 on
the grounds that the first district court omitted a jury instruction and included confusing
language. R. 168 (Mot.) (Page ID #1012); R. 169 (Mem. at 13) (Page ID #1026). The first
district court disagreed, so it denied Luna’s motion. See Luna (Luna I) v. Bell, No. 3:11-CV-
00093, 2013 WL 5592194, at *4 (M.D. Tenn. Oct. 10, 2013).

       Then, in 2014, the New York Times published an article that discussed Luna’s case.
R. 175-3 (Mem. Ex. 3, Erica Goode, When Cell Door Opens, Tough Tactics and Risk, N.Y.
Times (July 28, 2014), http://nyti.ms/1nUFcq6) (Page ID #1241). The reporter had discovered a
letter that William Amonette (“Amonette”), who was part of the cell extraction team, had written
to Bell (hereinafter, “the letter”). Id. at 11 (Page ID #1251). In this letter, dated February 7,
2011, Amonette resigned from his position at the Institution:

       After much thought and consideration, I have determined that it is necessary for
       me to resign my position with the Tennessee Department of Corrections.
       My reasons for this are two-fold.
       First, ever since I asked questions in your office about the witnesses in the
       Charles Toll case that were not spoken to by Internal Affairs, I have been treated
       poorly by your subordinates when I report to work.
       Secondly, I also discovered on February 2, 2011 that the records for my
       September 2, 2010 core training session were altered to reflect that I had eight
       (8) hours of training when I only received six (6) and I was told just to sign the
 Nos. 17-5608/5675                      Luna v. Bell et al.                                 Page 4


       time sheet. This is falsification of training records, and I was ridiculed at the time
       for not wanting to accept eight (8) hours pay for (6) hours work. When I
       requested a slip to sign for two hours comp time, I was treated as if I was causing
       an inconvenience. Some guards advised me that they have done as little as four
       (4) hours training and were paid for eight (8) hours. With the extenuating
       allegations surrounding proper officer training, I felt it necessary to make you
       aware of the situation.
       To put this simply, I cannot work somewhere where asking questions or trying to
       do what is right is punished. Please accept this letter as notification of my two
       week notice of separation.

R. 175-5 (Mem. Ex. 5) (Page ID #1254).           Defendants had not produced this letter when
responding to Luna’s requests for production of documents. R. 175-2 (Mem. Ex. 2) (Page ID
#1110–1240).

       In view of this new evidence, Luna moved under Federal Rule of Civil Procedure
60(b)(2) for relief from the judgments and from the order denying a new trial. R. 174 (Mot.)
(Page ID #1094). Luna also moved to reopen the case. R. 173 (Mot.) (Page ID #1092). In
February 2015, the first district court granted both of these motions in an order.   R. 185 (Order)
(Page ID #1443). Then in April 2015, the first district court issued another order, providing
supporting reasoning. R. 187 (Order) (Page ID #1463). Defendants have appealed both of these
orders. R. 300 (Notice of Appeal) (Page ID #3836).

       Luna also moved for sanctions because of Defendants’ failure to produce the letter.
R. 221 (Mot.) (Page ID #2808). The magistrate judge determined, however, that sanctions were
not warranted because Defendants did not act with bad faith when they failed to produce the
letter. Luna (Luna II) v. Bell, No. 3:11-CV-00093, 2016 WL 3688930, at *9 (M.D. Tenn. July
12, 2016). The second district court agreed that sanctions were not appropriate, even if Luna did
have a right to a new trial. Luna (Luna III) v. Bell, No. 3-11-0093, 2016 WL 10719390, at *2
(M.D. Tenn. Aug. 18, 2016).

       Additionally, Defendants moved for the second district court to reconsider the order
granting the new trial. See R. 191 (Mot.) (Page ID #1475). However, the second district court
denied Defendants’ motion. R. 198 (Order) (Page ID #1514). When Defendants moved again
for reconsideration, the third district court also denied Defendants’ request. Luna (Luna IV) v.
 Nos. 17-5608/5675                     Luna v. Bell et al.                               Page 5


Bell, No. 3-11-0093, 2017 WL 1425511, at *1 (M.D. Tenn. Apr. 20, 2017). Defendants have
appealed these two orders. R. 300 (Notice of Appeal) (Page ID #3836).

       Lastly, Defendants moved for the third district court to grant summary judgment on both
claims. R. 268 (Mot.) (Page ID #3583). The third district court determined that summary
judgment was appropriate on the ground that there was no genuine dispute of material fact
regarding Luna’s excessive-force claim or failure-to-train claim. Luna (Luna V) v. Bell, No.
3:11-cv-0093, 2017 WL 1952401, at *5–7 (M.D. Tenn. May 11, 2017). Luna appealed this
judgment. R. 297 (Notice of Appeal) (Page ID #3830).

                                      II. DISCUSSION

A. The first district court did not abuse its discretion when it vacated the jury’s verdict
   and ordered a new trial.

       We review a decision to deny relief under Rule 60(b)(2) for abuse of discretion. See
JPMorgan Chase Bank, N.A. v. First Am. Title Ins. Co., 750 F.3d 573, 584 (6th Cir. 2014), cert.
denied, 135 S. Ct. 2349 (2015). “An abuse of discretion occurs when the district court relies
upon clearly erroneous findings of fact, improperly applies the governing law, or uses an
erroneous legal standard.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). We “will find an
abuse of discretion only where there is a definite and firm conviction that the trial court
committed a clear error of judgment.” Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir.
1998) (quotation marks and citations omitted).

       Under Rule 60(b)(2), a party may request relief because of “newly discovered evidence.”
The movant needs to show by clear and convincing evidence (1) that it exercised due diligence to
obtain the evidence and (2) that the evidence is material, i.e., would have clearly resulted in a
different outcome. See JPMorgan Chase Bank, 750 F.3d at 585 (first citing Info-Hold, Inc. v.
Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008); then citing HDC, LLC v. City of Ann
Arbor, 675 F.3d 608, 615 (6th Cir. 2012); and then citing Good, 149 F.3d at 423). Thus, “the
evidence cannot be merely impeaching or cumulative.” Good, 149 F.3d at 423.
 Nos. 17-5608/5675                      Luna v. Bell et al.                                 Page 6


       1. Due Diligence

       The first district court did not abuse its discretion by determining that Luna acted
diligently in requesting discovery responses that should have included the letter. For instance,
the district court noted that “the resignation letter is dated five days after [Luna’s] counsel filed
the original complaint and served Rule 34 requests for production of documents upon
Defendants Bell and Horton for (1) Mr. Amonette’s personnel file, (2) all reports, memoranda, or
documents pertaining to Mr. Toll’s death, and (3) all emails and other written communications
pertaining to Mr. Toll’s death.” R. 187 (Order at 4) (Page ID #1466). “On April 25, 2011,
Defendants’ counsel produced the requested documents, including Mr. Amonette’s personnel
file, from the Tennessee Department of Corrections.” Id. at 4–5 (Page ID #1466–67). However,
“[u]nbelievably, the resignation letter never surfaced until [Luna] read about it in a New York
Times article nearly one year after trial.” Id. at 5 (Page ID #1467) (footnotes omitted). In fact,
“[t]he parties [did] not dispute that any letter written by then-Defendant Amonette to Defendant
Bell should have been produced.” Id. Thus, the first district court did not abuse its discretion by
finding that Luna acted diligently in submitting discovery requests.

       Additionally, the first district court correctly rejected Defendants’ argument—that Luna
did not act diligently because she failed to request the letter from Defendants after Amonette
discussed the letter during his deposition. The first district court noted that “the reasons Mr.
Amonette outlined in his resignation letter to Defendant Bell are inconsistent with those
presented to [Luna’s] attorneys through his testimony.” Id. at 6 (Page ID #1468). In fact,
“[w]hen questioned as to why he resigned, Mr. Amonette certainly made no mention about
‘falsification of training records’ or witnesses in this case ‘that were not spoken to by internal
affairs.’” Id. This caused the first district court to reject “Defendants’ argument that ‘[Luna], in
the exercise of due diligence, could have made a public records request to the State for a copy of
Mr. Amonette’s resignation letter.’” Id. A review of Amonette’s deposition testimony supports
the first district court’s reasoning. R. 178-4 (Resp. Ex. 4 at 23–25, 66) (Page ID #1372–74,
1415). Thus, the first district court did not rely on clearly erroneous findings of fact to reach its
conclusion.
 Nos. 17-5608/5675                      Luna v. Bell et al.                                 Page 7


       Lastly, the second district court’s determination that sanctions were not warranted for
Defendants’ failure to produce the letter is not inconsistent with the first district court’s
conclusion regarding Luna’s diligence. As the second district court noted, “[a] court may assess
attorney fees against a party under the court’s inherent powers when a party has acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.” Luna III, 2016 WL 10719390, at *1.
Because “[Luna’s] counsel knew about the resignation letter during the deposition of Mr.
Amonette before the first trial,” Luna’s knowledge “does weigh against finding of extraordinary
sanctions sought against Defendants.” Id. at *2. The second district court determined, however,
that “[Luna’s] failure to request this letter did not preclude [her] from obtaining a new trial.” Id.
Therefore, the second district court’s decision denying discovery sanctions does not invalidate
the first district court’s determination regarding Luna’s diligence—due diligence in seeking
evidence through discovery and bad faith in failing to disclose evidence subject to discovery are
separate issues.

       2. Material, Controlling Evidence

       The first district court also determined that the letter was material, controlling evidence,
and it stated the following:

       The Court finds that Mr. Amonette’s newly discovered resignation letter is
       material evidence that would have assisted the jury in weighing the credibility of
       the defense witnesses, would have affected depositions and the parties’
       presentation of trial evidence, and would most likely have led the parties to other
       material evidence.
                As to whether this newly discovered evidence clearly would have
       produced a different result if presented before the original judgment, the Court
       considers the affidavit of William Gary Blackburn that [Luna] submitted in
       support of her Motions. (Doc. No. 175-6.) Mr. Blackburn is a respected attorney
       who has practiced law in Tennessee for forty-three years and who has relevant
       experience from his involvement in many § 1983 cases. Based on this
       experience, Mr. Blackburn opines that the content of Mr. Amonette’s resignation
       letter is significantly relevant and valuable to the issues in this civil rights case,
       including the issue of training of corrections officers. (Id. ¶¶ 11, 13.) Mr.
       Blackburn echoes the Court’s findings that the letter is material to the credibility
       of the defense witnesses and substantially material to the presentation of evidence
       in this case and states that “the outcome of this trial in 2013 would, more likely
       than not, have been affected by the introduction and use of William Amonette’s
       resignation letter.” (Id. ¶¶ 11–13.)
 Nos. 17-5608/5675                       Luna v. Bell et al.                                  Page 8


               Based on the unique facts of this case, the evidence presented in support of
       these Motions, and the Court’s own experience gathered over the past thirty-five
       years, the Court finds clear and convincing evidence that Mr. Amonette’s
       resignation letter is material, controlling, and clearly would have produced a
       different result if presented before the original judgment. Therefore, [Luna] has
       satisfied the second prong of the Rule 60(b)(2) test and is entitled to relief under
       this rule.

R. 187 (Order at 7–8) (Page ID #1469–70) (emphasis added).

       Based on these paragraphs, two of the first district court’s reasons for finding materiality
are invalid—impeaching witnesses and conducting discovery. First, to receive relief, “evidence
cannot be merely impeaching.” Good, 149 F.3d at 423. Luna, therefore, cannot receive relief
because the letter “would have assisted the jury in weighing the credibility of the defense
witnesses.” R. 187 (Order at 7) (Page ID #1469). Second, Luna needed to show that the letter
“clearly would have produced a different result if presented before the original judgment.”
Good, 149 F.3d at 423 (quoting N.H. Ins. Co. v. Martech U.S.A., Inc., 993 F.2d 1195, 1200–01
(5th Cir. 1993)). Thus, Luna cannot receive relief because the letter “would have affected
depositions and the parties’ presentation of trial evidence, and would most likely have led the
parties to other material evidence.” R. 187 (Order at 7) (Page ID #1469).

       Impeaching witnesses and conducting discovery, however, are not the only reasons for
the first district court’s conclusion. The first district court also determined that the letter clearly
would have produced a different result regarding Luna’s claims because of Blackburn’s
assessment, the evidence in the parties’ motions, the unique facts, and the first district court’s
own experience. R. 187 (Order at 7–8) (Page ID #1469–70). In light of this reasoning, we
cannot say that the first district court abused its discretion by resolving that the letter is material
and controlling.

       In summary, “[b]ecause we do not have a definite conviction” that the first district court
“committed a clear error of judgment,” JPMorgan Chase Bank, 750 F.3d at 585 (quotation
marks and citations omitted), the first district court did not abuse its discretion in finding Luna
had satisfied each element of Rule 60(b)(2). Therefore, we affirm the first district court’s order
 Nos. 17-5608/5675                       Luna v. Bell et al.                                Page 9


granting Luna relief under Rule 60(b)(2) from the judgments and from the order denying a new
trial.

B. The second and third district courts correctly denied Defendants’ requests for
   reconsideration.

         Abuse of discretion is also the applicable standard for reviewing a district court’s denial
of a motion for reconsideration under Federal Rule of Civil Procedure 54(b). See Rodriguez v.
Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 952–53 (6th Cir. 2004). We have
stated that “courts will find justification for reconsidering interlocutory orders whe[re] there is
(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct
a clear error or prevent manifest injustice.” Louisville/Jefferson Cty. Metro Gov’t v. Hotels.com,
L.P., 590 F.3d 381, 389 (6th Cir. 2009) (alteration in original) (quoting Rodriguez, 89 F. App’x
at 959). Because the first district court acted within its discretion to grant Luna relief under Rule
60(b)(2), we cannot conclude that it was improper to deny Defendants’ requests for
reconsideration, and we affirm the orders.

C. The third district court improperly granted Defendants summary judgment.

         We review the grant of summary judgment de novo. Schleicher v. Preferred Sols., Inc.,
831 F.3d 746, 752 (6th Cir.), cert. denied, 137 S. Ct. 531 (2016). “Summary judgment is
warranted only if the record shows that ‘there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’” Wenk v. O’Reilly, 783 F.3d 585,
593 (6th Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)), cert. denied,
136 S. Ct. 792 (2016).

         When considering Defendants’ motion for summary judgment, the third district court
reviewed only new evidence that the jury did not consider. See Luna V, 2017 WL 1952401, at
*4. For instance, the third district court noted that there were “a number of material factual
disputes regarding the excessive-force claim,” but “[t]he jury resolved those disputes in favor of
the defendants.” Id. at *5. “Because [Luna] failed to prove that Doss and Horton violated Toll’s
constitutional rights, she necessarily [could not] establish that Bell’s failure to ensure adequate
 Nos. 17-5608/5675                              Luna v. Bell et al.                                         Page 10


training caused any such violation.” Id. at *6. Thus, for both claims, the third district court did
not examine any factual disputes that the jury already considered.

       By granting a new trial, however, the first district court vacated the jury’s findings. We
have stated “that the order granting the new trial has the effect of vacating the former judgment,
and to render it null and void, and the parties are left in the same situation as if no trial had ever
taken place in the cause.” Miller v. United States, 173 F.2d 922, 924 (6th Cir. 1949) (quoting
United States v. Ayres, 76 U.S. 608, 610 (1869)). Moreover, we concluded that “[w]hen [a]
verdict [is] set aside the issues of fact [are] left undetermined, and until they should be
determined anew no judgment on the merits [can] be given.” Id. (quoting Slocum v. N.Y. Life
Ins. Co., 228 U.S. 364, 380 (1913)). We also clarified that “a court [cannot] adopt the evidence
heard upon the first trial as the evidence in the second.” Id.; see also Gaedeke Holdings VII LTD
v. Baker, 683 F. App’x 677, 682 (10th Cir. 2017) (holding “that once Gaedeke sought and
received a new trial, this vacated the jury’s verdict and the corresponding judgment”).

       The first district court’s order granting a new trial did not limit the new trial’s scope.
This is apparent from the order’s language, which suggests that the letter would have had
sweeping influence over the trial:             “the letter is material to the credibility of the defense
witnesses and substantially material to the presentation of evidence in [Luna’s] case” because
“the outcome of this trial in 2013 would, more likely than not, have been affected by the
introduction and use of William Amonette’s resignation letter.” R. 187 (Order at 7–8) (Page ID
#1469–70) (second quotation quoting R. 175-6 (Mem. Ex. 6 ¶¶ 11–13) (Page ID #1256)). Thus,
the first district court granted a completely new trial, requiring a new jury to examine anew all
factual disputes.2

       Additionally, when considering Defendants’ motion for summary judgment, the third
district court did not use the proper standard. For instance, the third district court stated that “the
question implicit in the defendants’ Motion for Summary Judgment is whether [Luna’s] new
evidence is sufficient to call into doubt the credibility of any of the witnesses on a material
matter or to cast any of the evidence offered at trial in a different light, such that a new trial is

       2
           The district court did not order a partial new trial but completely vacated the judgments for Defendants.
 Nos. 17-5608/5675                      Luna v. Bell et al.                                Page 11


actually warranted”—which is not the standard for a motion for summary judgment. Luna V,
2017 WL 1952401, at *2. Instead, the third district court should have reviewed all material facts
in a light most favorable to Luna to determine whether to grant summary judgment to
Defendants. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

       In conclusion, as the third district court noted, “[t]here clearly are disputed issues of fact
in this case—that is why it went to trial in the first place.” Luna V, 2017 WL 1952401, at *2.
The addition of the Amonette letter provides even more disputed material facts regarding Luna’s
claims. Therefore, we reverse the third district court’s order granting summary judgment to
Defendants and remand the case to the third district court to conduct a new trial regarding both
of Luna’s claims.

                                      III. CONCLUSION

       Thus, we AFFIRM the first district court’s order granting Luna relief under Rule
60(b)(2) from the judgments and from the order denying a new trial. We also AFFIRM the
orders denying Defendants’ requests to reconsider. Lastly, we REVERSE the third district
court’s order granting summary judgment to Defendants, and we REMAND for further
proceedings consistent with this opinion.
