               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0137n.06

                                          Case No. 17-1423

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
                                                                          Mar 15, 2018
CLIFTON WALKER; LATASHIA HAYES, )
                                     )                                DEBORAH S. HUNT, Clerk
     Plaintiffs-Appellants,          )
                                     )
v.                                   )
                                     )               ON APPEAL FROM THE UNITED
                                     )               STATES DISTRICT COURT FOR THE
RDR    REAL       ESTATE;   JENNIFER
                                     )               EASTERN DISTRICT OF MICHIGAN
LEWARCHIK; RANDY LEWARCHIK;
                                     )
ALEJANDRO PARRA; JAMES MILLER;
                                     )
DONALD R. FARRIS,
                                     )
                                     )
     Defendants-Appellees.
                                     )


       BEFORE: MOORE, COOK, and McKEAGUE, Circuit Judges.

       COOK, Circuit Judge. Clifton Walker and Latashia Hayes sued their former landlords

and their on-site building managers (together, the “RDR defendants”) as well as three law

enforcement officers (the “officer defendants”), claiming that the defendants unlawfully evicted

them from their Detroit apartment. Their claims ultimately resulted in dismissal or judgment in

favor of all defendants. Following trial, Walker and Hayes moved for a new trial and for relief

from judgment. The district court denied both motions. For the reasons explained below, we

AFFIRM.

                                     I.      BACKGROUND

       During their tenancy, Walker and Hayes consistently ran into trouble with the RDR

defendants, eventually prompting eviction proceedings. Walker and Hayes finally vacated the
Case No. 17-1423, Walker, et al. v. RDR Real Estate, et al.


apartment after a confrontation with law enforcement. Following their departure, Walker and

Hayes sued the defendants.

       After the district court granted the RDR defendants summary judgment, the case

proceeded to trial and a jury found for the officer defendants on all claims. Walker and Hayes

then moved for a new trial and for relief from summary judgment, pointing to what they viewed

as newly-discovered evidence. The district court denied the new-trial motion as untimely and

denied the motion for relief from summary judgment because the proffered “new evidence” had

actually been in their possession before trial. Walker and Hayes appeal those rulings.

                                        II.   ANALYSIS

       We review for abuse of discretion the district court’s denial of both a motion for a new

trial and a motion for relief from judgment. Wesley v. Campbell, 864 F.3d 433, 441 (6th Cir.

2017); Franklin v. Jenkins, 839 F.3d 465, 472 (6th Cir. 2016). “We recognize an ‘abuse of

discretion’ when our review leaves us with ‘a definite and firm conviction that the trial court

committed a clear error of judgment.’” Franklin, 839 F.3d at 472 (quoting Burrell v. Henderson,

434 F.3d 826, 831 (6th Cir. 2006)).

                                      A. Motion for New Trial

       Rule 59 affords parties twenty-eight days after entry of judgment to move for a new trial.

Fed. R. Civ. P. 59(b). No extensions are permitted. Fed. R. Civ. P. 6(b)(2). In this case, the

twenty-eighth day after the court entered judgment against Walker and Hayes was Monday, May

27, 2013. Because this was a legal holiday (Memorial Day), the rules allowed Walker and Hayes

an extra day, making the filing deadline Tuesday, May 28. See Fed. R. Civ. P. 6(a)(1). They

filed on May 29.




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Case No. 17-1423, Walker, et al. v. RDR Real Estate, et al.


       Despite the clear deadline, Walker and Hayes argue that the district court failed to

consider the circumstances giving rise to their tardiness. Specifically, they contend defense

counsel made a “bogus” report to the state attorney grievance commission “solely to undermine

the effort and ability [of] Plaintiffs’ counsel to prepare and bring Plaintiffs’ motion for a new

trial within 28 days,” and that the court wrongfully failed to take judicial notice of this “fact.”

They also claim the defendants forfeited their untimeliness argument because of their

purportedly inequitable conduct.     But these arguments provide no basis to avoid the hard

deadline imposed by the rules. Thus, we conclude that it was not an abuse of discretion to deny

this untimely motion.

                               B. Motion for Relief from Judgment

       The district court also denied Walker and Hayes’s Rule 60(b) motion for relief from

summary judgment. As an initial matter, we dispense with the RDR defendants’ argument that

this motion too was untimely. Motions for relief under Rule 60(b)(1)–(3) must be made “no

more than a year after the entry of the judgment or order.” Fed. R. Civ. P. 60(c)(1). The district

court entered summary judgment on September 20, 2012. Walker and Hayes moved for relief

from this judgment on June 10, 2013. The court eventually dismissed their motion without

prejudice due to an intervening bankruptcy stay. Walker and Hayes then re-filed their motion on

August 1, 2014, following modification of the stay. Because they filed the original Rule 60(b)

motion on time and then re-filed within thirty days of the stay modification, the motion was

timely. See Walker v. RDR Real Estate, 640 F. App’x 411, 416 (6th Cir. 2016) (“[M]oreoever,

[the bankruptcy code] gave Walker and Hayes 30 days in which to refile the post-trial motions

following modification of the stay.”).




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Case No. 17-1423, Walker, et al. v. RDR Real Estate, et al.


       As to the merits of the motion, Walker and Hayes claim that a transcript prepared by

defense counsel of audio on a CD constitutes newly discovered evidence warranting relief from

the summary judgment entered against them. The CD’s audio content included interactions

between Walker and the defendants. But the transcript was not new evidence. It is undisputed

that the transcript represents the typed version of words a hired court reporter discerned in

listening to the CD. Walker and Hayes received a copy of the same CD more than a year before

trial and were free to transcribe it for themselves. Notably, the plaintiffs nowhere allege that the

defense created the transcript from a copy with better sound quality. What is more, defense

counsel sent the transcript to the attorney for Walker and Hayes on the Friday of the week before

trial. Counsel simply failed to find the transcript in his unread email until after trial. And given

that the transcript was not new evidence—just the earlier-provided CD’s contents in transcript

form—defense counsel’s failure to share it earlier with Walker and Hayes cannot amount to

fraud, misrepresentation, or misconduct. The district court therefore did not abuse its discretion

in denying the plaintiffs’ Rule 60(b) motion.

                                     III.    CONCLUSION

       For these reasons, we AFFIRM the district court’s denial of Walker and Hayes’s post-

trial motions.




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