                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0533n.06

                                            No. 11-3277

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

KENNETH S. TAYLOR; ALYCIA TAYLOR                      )                             FILED
DRIGGINS,                                             )
                                                      )
                                                                               May 23, 2012
       Plaintiffs-Appellants,                         )                  LEONARD GREEN, Clerk
                                                      )
v.                                                    )
                                                      )
DEUTSCHE BANK NATIONAL TRUST                          )
COMPANY, as Trustee for Certificate Holders           )       ON APPEAL FROM THE UNITED
of Soundview Home Loan Trust 2006-Opt2,               )       STATES DISTRICT COURT FOR
Asset Backed Certificates Series 2006-Opt2;           )       THE NORTHERN DISTRICT OF
AMERICAN HOME MORTGAGE                                )       OHIO
SERVICES, INC.; ROBIN M. WILSON, both                 )
Official and Individual Capacity; THOMPSON            )
HINE LLP; CYNTHIA STEVENS; SCOTT                      )
WALTER;             SAND         CANYON               )
CORPORATION; JEANELLE GRAY;                           )
CHICAGO TITLE, et al.,                                )
                                                      )
       Defendants-Appellees.                          )
                                                      )



       Before: DAUGHTREY, MOORE, and COLE, Circuit Judges.

       PER CURIAM. Kenneth S. Taylor and Alycia Taylor Driggins, Ohio residents proceeding

pro se, challenge the district court’s sua sponte dismissal of their complaint alleging various federal

and state claims related to the foreclosure on their property. This case has been referred to a panel

of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. We unanimously agree that oral

argument is not needed. Fed. R. App. P. 34(a). For the reasons articulated below, we conclude that

we lack jurisdiction over the final judgment in this case and therefore cannot review the sua sponte

dismissal of the Taylors’ complaint. However, we vacate the district court’s order that denied the

Taylors’ motion for relief from the final judgment and remand this case for further proceedings.
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        On December 6, 2010, the Taylors filed a complaint against 23 defendants and effectuated

service on four: Deutsche Bank National Trust Company, American Home Mortgage Servicing Inc.,

Thompson Hine LLP, and Robin M. Wilson — an attorney at Thompson Hine. Construed liberally,

the complaint alleged violations of various federal statutes and Ohio laws for conduct that occurred

during the execution of a mortgage and subsequent foreclosure proceeding on their property.

        On December 27, Thompson Hine and Robin Wilson (collectively Thompson Hine) moved

to dismiss the complaint on the following grounds: (1) they were not liable for actions taken in good

faith during representation of a client1; (2) the court lacked subject matter jurisdiction because both

diversity and a federal question were lacking; (3) the Rooker-Feldman doctrine2 barred the instant

lawsuit; (4) the Taylors’ claims in the instant lawsuit were barred by issue preclusion; and (5) the

complaint failed to state a claim upon which relief could be granted. To its motion, Thompson Hine

attached several documents regarding the foreclosure case.

        On December 29, the district court issued an order sua sponte dismissing the Taylors’ case.

The court concluded that the instant action was barred by the Rooker-Feldman doctrine because

“[t]he Summit County Common Pleas Court Docket show[s] that foreclosure on [the Taylors’]

property occurred on February 1, 2010.” The court also determined that res judicata barred the

Taylors’ federal case because it raised claims that could have been raised in the state foreclosure

case.

        On January 4, 2011, the Taylors filed an “opposition” to Thompson Hine’s motion to dismiss,
an “opposition” to the district court’s December 29 order, and a motion for both “an order to show



        1
         Documents submitted with the motion indicate that Thompson Hine represented Deutsche
Bank in the foreclosure proceedings.
        2
         The Rooker-Feldman doctrine is derived from Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine
“prevents the lower federal courts from exercising jurisdiction over cases brought by ‘state-court
losers’ challenging ‘state-court judgments rendered before the district court proceedings
commenced.’” Lance v. Dennis, 546 U.S. 459, 460 (2006) (quoting Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
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                                               -3-

cause” and a temporary restraining order. The district court denied the motion in a marginal entry

order on January 7. On January 10, the Taylors filed a motion for relief from judgment, which the

district court denied on January 11. On January 14, the Taylors filed a motion in “opposition” to the

district court’s December 29 order, requesting a default judgment and relief from the judgment. In

a marginal entry order on January 19, the court denied this motion. On February 11, the Taylors filed

another “opposition” to the district court’s December 29 order, requested a default judgment, and

sought relief from the judgment. The court denied this motion in a marginal entry order on February

14. On February 22, the Taylors filed a motion to impose sanctions on Thompson Hine for

contempt. On March 1, the district court denied this motion and directed its clerk “to no longer

accept filings from [the Taylors] in this matter.” On March 9, the Taylors filed a notice of appeal.

       In light of this case’s procedural history, we conclude that we do not have jurisdiction to

review the final judgment and can review only two of the district court’s post-judgment orders.

       The district court entered judgment on December 29, 2010. Under Rule 4(a)(1)(A) of the

Federal Rules of Appellate Procedure, the Taylors had until January 28, 2011, to file a notice of

appeal from the judgment unless they filed a time-tolling motion. See Fed. R. App. P. 4(a)(4)(A).

The two “oppositions” and the motion for a temporary restraining order that the Taylors filed on

January 4, 2011, did not toll the running of the period for appealing the final judgment. However,

the Taylors’ Rule 60(b) motion for relief from judgment, filed on January 10, did toll the time to

appeal the judgment entered on December 29. See Fed. R. App. P. 4(a)(4)(A)(vi). When the district
court denied this motion on January 11, the Taylors had 30 days to file a notice of appeal from the

final judgment. See id. They did not do so. Instead, the Taylors filed a second and a third motion

for relief from the judgment. These motions did not toll the time to appeal from the December 29

judgment, because only the first Rule 30(b) motion could do so unless the judgment were

substantially altered in the meantime. See Moody v Pepsi-Cola Metro. Bottling Co., 915 F.2d 201,

206 (6th Cir. 1990).

       Accordingly, looking back 30 days from the Taylors’ March 9 notice of appeal, we have

jurisdiction to review two of the district court’s orders: (1) the February 14 marginal entry order
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                                                 -4-

denying the Taylors’ third motion for relief from judgment, and (2) the March 1 order denying the

Taylors’ motion for contempt and sanctions and directing the clerk not to accept any more filings

from the Taylors.

       We conclude that the district court erred in denying the Taylors’ third motion for relief from

judgment. Rule 60(b) provides that “the court may relieve a party . . . from a final judgment” when

the judgment “is based on an earlier judgment that has been reversed or vacated.” Fed. R. Civ. P.

60(b)(5). Although difficult to comprehend, the Taylor’s third motion suggested that relief might

be warranted under Rule 60(b)(5).

       Case law regarding the pertinent provision of Rule 60(b)(5) is sparse. As the Tenth Circuit

has explained: “For a judgment to be ‘based on an earlier judgment’ it is not enough that the earlier

judgment was relied on as precedent; rather it is necessary that ‘the present judgment [be] based on

the prior judgment in the sense of res judicata or collateral estoppel.’” Manzanares v. City of

Albuquerque, 628 F.3d 1237, 1241 (10th Cir. 2010) (quoting Klein v. United States, 880 F.2d 250,

258 n.10 (10th Cir. 1989)) (alteration in original).

       Here, relying on the outcome of the state foreclosure proceedings, the district court reasoned

that the Rooker-Feldman doctrine and res judicata barred all the Taylors’ claims. In their third Rule

60(b) motion, the Taylors pointed out that the Ohio Court of Appeals, in part, had recently vacated

and remanded the trial court’s judgment in the foreclosure case. The state appellate court affirmed

the validity of the trial court’s foreclosure decree. But, because Deutsche Bank “never moved for
summary judgment on the claims contained in the counterclaims,” the court concluded that “there

was no basis upon which the trial court could grant summary judgment with regard to Taylor’s

counterclaims.” Deutsche Bank Nat’l Trust Co. v. Taylor, 2011 Ohio 435, ¶ 5 (Ohio Ct. App. Feb.

2, 2011), appeal denied, 948 N.E.2d 450 (Ohio 2011). The Court of Appeals therefore “remand[ed]

the counterclaims to the trial court.” Id.

       The instant case therefore could be one of those rare cases “based on an earlier judgment that

has been reversed or vacated.” Fed. R. Civ. P. 60(b)(5). Manzanares, 628 F.3d at 1241 (“The initial

dismissal of this suit was required by the judgment against Mr. Manzanares in the Higdon case,
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                                                -5-

because that judgment precluded him from relitigating whether Higdon had violated his rights.

When that judgment was later reversed, Rule 60(b)(5) relief became available.”). But because the

Taylors’ motion was denied in a marginal entry order, we cannot determine whether this denial was

an abuse of the district court’s discretion. See Brown v. Tenn. Dep’t of Fin. & Admin., 561 F.3d 542,

545-46 (6th Cir. 2009) (discussing standard of review).

       Accordingly, we conclude that a remand is necessary for the district court to explain its

reasons for denying the Taylors relief under Civil Procedure Rule 60(b)(5). We recognize that

comprehending the Taylors’ complaint is an arduous undertaking and that some of the alleged causes

of action do suggest the Taylors are seeking review of the judgment in the state foreclosure

proceedings or are attempting to litigate claims that are most likely barred by the foreclosure

proceedings. Liberally construed, however, the complaint alleges several claims that do not

obviously fall under the Rooker-Feldman doctrine or Ohio’s doctrine of res judicata. See Fields v.

Campbell, 39 F. App’x 221, 223 (6th Cir. 2002) (“It is ordinarily error to raise an affirmative defense

sua sponte unless the defense is obvious from the face of the complaint.” (citing Haskell v.

Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988))).

       For the foregoing reasons, we VACATE the district court’s orders of February 14, 2011, and

March 1, 2011, and REMAND this case for further proceedings consistent with this opinion. Rule

34(j)(2)(C), Rules of the Sixth Circuit.
