Opinion
Case No. 98-CV-73896-DT
September 28, 2001
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
On September 30, 1999, the Court entered a Memorandum Opinion and Order and Judgment in this case. The Court abstained from all of Plaintiff's claims, except for Count V, as to the due process claim only. The Court entered Judgment against Defendants Wayne County Circuit Court, Judges and Friend of the Court personnel ("Defendants") on Count v.
The Court denied Defendants' Motion for Enlargement of Time as untimely. Defendants thereafter filed a Motion for Relief from Judgment under Fed.R.Civ.P. 60(b). Plaintiff at first objected to the Rule 60(b) motion stating that the Court was without jurisdiction to address the motion but Plaintiff later withdrew his objection. As noted in this Court's order denying Defendants' Motion for Enlargement of Time, the Sixth Circuit has determined that motions under Rule 60(b) must be filed within a reasonable time after a judgment has been entered. Generally, the Sixth Circuit disfavors Rule 60(b) motions filed after an appeal period has run. The interests of finality of judgments and judicial economy outweigh the value of giving a party a second bite at the apple by allowing a rule 60(b) motion after an appeal period has run. Pierce v. United Mine Workers of America Welfare, 770 F.2d 449, 451-452 (6th Cir. 1985).
Here, Defendants filed their Motion under Rule 60(b) in conjunction with their Notice of Appeal on November 1, 1999. The Court will consider Defendants' Motion for Relief from Judgment since it was filed before the appeal period had run. It should be noted that Defendants object to Plaintiff's response to their Motion for Relief from Judgment as untimely filed. Plaintiff filed an "objection" to Defendants' Motion for Relief from Judgment, on November 3, 1999, which was within the response time for filing responses under Local Rule 7.1. Plaintiff's response was filed on November 29, 1999, at which time he withdrew his previously filed "objections." Even though Plaintiff is an attorney, he is proceeding pro se and the Court will consider Plaintiff's response filed as a substitute for his "objections." Defendants have not shown they will be prejudiced by the Court's consideration of the response, especially since Defendants now want the Court to consider an affidavit filed long past the time summary judgment motions were heard.
II. DEFENDANTS' MOTION FOR RELIEF FROM JUDGMENT A. Fed.R.Civ.P. 60(b)
Fed.R.Civ.P. 60(b) in pertinent part states:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. 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; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Defendants have stated three arguments in support of their Motion for Relief from Judgment. First, Defendants claim that the Judgment against Defendants is void because the Court lacks subject matter jurisdiction over the Complaint. Although not expressly identified by Defendants, the Court assumes that Defendants are seeking relief under Fed.R.Civ.P. 60(b)(4). Second, Defendants claim that the Judgment was based on a mistake in the application of the law. The Court assumes that Defendants are seeking relief under Fed.R.Civ.P. 60(b)(1) since Defendants again did not expressly identify the specific rule. Third, Defendants claim the Judgment was based on a mistake of fact by the Court. Again, the Court assumes Defendants are seeking relief under Fed.R.Civ.P. 60(b)(1).
B. Fed.R.Civ.P. 60(b)(4)/Judgment is Void
Relief from judgment can be had under Fed.R.Civ.P. 60(b)(4) if the Judgment entered is void. Defendants claim that the Judgment is void because there is no case and controversy at issue.
It is noted that Defendants did not raise this issue in any of their papers prior to the instant motion. Even if neither party addresses the jurisdictional issue, the federal courts are under an independent obligation to examine their own jurisdiction. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The Court has a threshold duty in every case to determine whether it has subject matter jurisdiction over the controversy before it, whether or not the parties have preserved for appeal a challenge to the Court's jurisdiction. In re Wolverine Radio Co., 930 F.2d 1132, 1137-38 (6th Cir. 1991). The Court will address this issue at this time.
Article III, section 2 of the United States Constitution confines federal court jurisdiction to cases and controversies. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1067, 137 L.Ed.2d 170 (1997). Merely because a party asks a federal court to declare his/her legal rights, the case-or-controversy requirements of Article III are not satisfied. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). Federal courts are prohibited from issuing advisory opinions. SEC v. Med. Comm. for Human Rights, 404 U.S. 403, 407 (1972). Federal courts require that a party has standing to institute an action. Valley Forge, 454 U.S. at 471.
Standing involves two levels of inquiry. The first is whether the plaintiff has shown, at a minimum, some actual or threatened injury resulting from the alleged illegal action. Id. at 472. The second is whether the plaintiff is the proper proponent of the rights in which the action is based. Singleton v. Wulff 428 U.S. 106, 112-113 (1976).
Under the "injury" requirement, a plaintiff must show more than abstract injury. A plaintiff must show that he/she "has sustained or is immediately in danger of sustaining some direct injury" as a result of the challenged statute or official conduct. Valley Forge, 454 U.S. at 476-78. The injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical." O'Shea v. Littleton, 414 U.S. 488, 494 (1974). Past exposure to illegal conduct, without a showing of continuing and present adverse affects, does not meet the injury requirement. Id. at 495-496.
In Parker v. Turner, 626 F.2d 1 (6th Cir. 1980), a child support case, the plaintiffs were found to have standing because they claimed that they could not afford to make support payments and would likely face future contempt proceedings. Plaintiffs claimed that the procedures in enforcing their child support obligations were unconstitutional. Defendants claim that Plaintiff cannot show that he cannot make future payments because he is a lawyer, thus, Plaintiff is not facing future contempt proceedings.
There is no dispute that Plaintiff has been the subject of previous contempt proceedings. In this case, Plaintiff asserted in his Complaint and continues to assert that the Friend of the Court has erroneously and continuously overstated his child support obligations. Based on the alleged erroneous entries, Plaintiff claims he would face future contempt proceedings because he does not agree with the Friend of the Court's assessments of his child support obligations. Given Plaintiff's allegation that he does not agree with the Friend of the Court's assessments and that he would be facing future contempt proceedings, Plaintiff has established the minimum requirement of standing in this case.
Defendants cite Johnson v. Turner, 125 F.3d 324 (6th Cir. 1997) to support their argument. The Johnson case involved consolidated cases which challenged the procedures in a paternity action and enforcement of child support obligations. The Sixth Circuit found that in paternity actions, because such actions involve a one-time judgment of paternity, the plaintiffs could not demonstrate injury because they could not show that they would be subject to future paternity actions. The Sixth Circuit found that in the absence of evidence that the plaintiffs will again be subject to paternity proceedings, the plaintiffs had no interest in the challenged statutes and proceedings. The Sixth Circuit found no standing in that case. As to the plaintiffs involved in child support payments, because the plaintiffs had not demonstrated that they could not make future support payments, the Sixth Circuit found that plaintiffs did not have the necessary standing to seek injunctive and declaratory relief. Johnson, 125 F.3d at 338-339.
Here, Plaintiff's child support obligation is not a one-time issue but a continuing issue. Plaintiff has alleged that the Friend of the Court's assessments are erroneous, thus, he would be subject to future contempt proceedings. Plaintiff has standing in the case before the Court. Plaintiff has satisfied the case-in-controversy requirement under Article III of the Constitution.
C. Fed.R.Civ.P. 60(b)(1)/Mistake as to Application of Law
The Sixth Circuit has stated that "mistake" as used in Rule 60(b)(1) encompasses any type of mistake or error on the part of the court. Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir. 1983). A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law, or uses an erroneous legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995).
Defendants claim that the Court misinterpreted the "bad faith" exception to the abstention doctrine as enunciated in Younger v. Harris, 401 U.S. 37 (1971). Defendants argue that the state courts can adequately address the alleged bad faith actions in the state appellate courts. Defendants cite Parker, to support their argument. In Parker, the Sixth Circuit affirmed the district court's decision to abstain from the case holding that the plaintiffs, indigent fathers, could not seek federal court relief for their claims that the state courts denied them due process of law by denying them the right to counsel, the right to confront and cross-examine witnesses, and the right to testify and present witnesses on their own behalf. Parker, 626 F.2d at 2. The Sixth Circuit found that for the federal courts to adjudicate the suit would result in "significant and unacceptable interference in the state judicial process," which might include ongoing supervision of the state court. Id. at 3.
In response, Plaintiff argues that if the state court is to determine the bad faith exception under the Younger abstention doctrine, there would be no bad faith exception. Plaintiff claims that the bad faith issue is an issue for the federal courts, and not the state courts. A party must exhaust his state court appellate remedies unless he/she can bring himself within the exceptions specified in Younger. Hoffman v. Peruse, 420 U.S. 592, 608 (1975).
The Court's September 30, 1999 Memorandum Opinion and Order thoroughly went through the Younger abstention requirements and its applicability to Plaintiff's claims. (9/30/99 Opinion, pp. 2-14) The Court found that based on the evidence submitted by Plaintiff which was unrebutted by Defendants, Plaintiff had shown that Dependants acted in bad faith in enforcing child support orders when pre-printed, pre-signed orders to show cause and bench warrants were issued without review by a Circuit Court judge. The Court noted that when the Friend of the Court initiates contempt proceedings, an individual's right to liberty is at stake. The Friend of the Court (with the complicity of the Wayne County Circuit Court) by issuing orders to show cause and bench warrants without independent judicial review and outside the statutory mandate of M.C.L.A § 552.641 and M.C.R. 3.208(B), violated Plaintiff's due process rights. In its opinion, the Court did not enjoin Defendants from any acts but merely declared that Plaintiff's rights were violated. The Court did not order Defendants to do anything. The Court's opinion did not "interfere" with any state court judicial process. The Court did not misinterpret the "bad faith" exception analysis in its Opinion.
D. Fed.R.Civ.P. 60(b)(1)/Mistake as to Findings of Facts
Defendants claim the Court misunderstood the state of the facts. Defendants argue that they did submit evidence in opposition to Plaintiff's claim. Defendants believed that the parties had stipulated to the facts as set forth in the "defendants' brief." Defendants claim that at the very least, the evidence submitted by the Defendants created an issue of fact that precluded summary judgment by this Court. Defendants argue that their counsel misunderstood the clarity of the record at a point in the proceedings when an answer had not yet been filed and no discovery had been conducted. Defendants now submit the affidavit of Kirsten Frank Kelly, Presiding Judge, Wayne County Circuit Court, Family Division, to support their position. Defendants further claim that the confusion in this case resulted from the loose usage of the term "Friend of the Court" throughout the record. Defendants argue that the family division referees, frequently referred to as the Friend of the Court Referees, are not part of the Friend of the Court, but are judges. Defendants claim that only after Referees have recommended bench warrants can the "digitized" signature of Judge Kelly be used. Defendants claim that the court, through procedures and guidelines, does monitor and supervise the issuance of orders to show cause and bench warrants. Defendants argue that the Circuit Court judges have the authority to delegate to their judicial referees the task of executing show cause orders and bench warrants.
In response, Plaintiff claims that the Court had asked Defendants on the record whether they would wish to make any further written response to Plaintiff's motion for summary judgment. Defendants' counsel declined to do so. Defendants were aware of the posture of the proceedings. Plaintiff had initially requested a preliminary injunction, joined with a trial on the merits. Plaintiff agreed not to go forward with the preliminary injunction motion and trial on the merits but to proceed on his cross-motion for summary judgment. (10/5/98 hrg., pp. 4-6) Defendants did not submit any evidence rebutting Plaintiff's evidence regarding the orders to show causes and bench warrants. Plaintiff argues that Judge Kelly's proffered affidavit supports his claim that no independent judicial review is made before orders to show cause and bench warrants are issued.
Defendants' arguments that the parties had stipulated to the "facts" in Defendants' brief is not supported by the record. The Court expressly noted what would be addressed at the hearing. The Court expressly asked Defendants, "And that no one of the Defendants wishes to make any further written response to the Plaintiff's motion — Plaintiff's cross motion for summary judgment; is that right?" Defense counsel responded, "That is correct, Your Honor." (10/5/98 hrg., p. 4.) When Plaintiff argued, he expressly noted the standard for a motion for summary judgment. (10/5/98 hrg., pp. 11-12) Plaintiff expressly argued that the Complaint had extensive exhibits and was supplemented with a motion for summary judgment containing even more extensive affidavits, noting that most of the exhibits were Defendants' own records. (10/5/98 hrg., p. 13) Plaintiff noted that Defendants had filed a response to the cross motion for summary judgment with no counter affidavits or exhibits attached. (10/5/98 hrg., p. 13)
Based on the record, the Court had no misunderstanding of the procedural posture of the case. The Court also expressly noted on the record, and the parties agreed, as to where the parties were at that stage of the proceedings. Defendants did not seek further discovery. Defendants were on notice that Plaintiff originally sought to have a preliminary injunction hearing, along with a trial on the merits. The record is clear that Defendants were aware that Plaintiff's cross motion for summary judgment was before the Court.
The Court had no misunderstanding as to who and what the differences are between the Friend of the Court, the Referee, and the Wayne County Circuit Court Judges. The Court found in its opinion that Plaintiff's due process rights were violated because there was no independent judicial review of the show cause orders or bench warrants. The Court's opinion expressly set forth the requirements under M.C.R. 3.208(B) and M.C.L.A. § 552.631(1) which the Court found were not followed by the Friend of the Court and the Wayne County Circuit Court. Defendants' arguments that the Circuit Court has the "authority" to "delegate administrative duties to a trial court administrator or others" does not change this Court's opinion that an independent judicial review, by a Circuit Judge, is required by the Michigan statute and rule and constitutional requirements before the issuance of show cause orders and bench warrants since an individual's liberty is at stake.
As to whether the Court should consider Judge Kelly's affidavit, the Court declines to do so. It is within the discretion of the district court whether to consider untimely affidavits. Hooks v. Hooks, 771 F.2d 935, 946 (6th Cir. 1985). If the affidavit is untimely and the party does not alert the Court to any previously unconsidered issues of material fact, the affidavit should not be considered. Michigan State Podiatry Ass'n v. Blue Cross and Blue Shield of Michigan, 681 F. Supp. 1239, 1241 (E.D. Mich. 1987). Fed.R.Civ.P. 56(c) imposes a burden on the nonmoving party to produce evidence to rebut a properly supported motion for summary judgment. The nonmovant "may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Celotex Corp. v. Cattrett, 477 U.S. 317 (1986).
Defendants have not provided any viable reason as to why no evidence was submitted to rebut Plaintiff's motion for summary judgment. Even if the Court were to consider Judge Kelly's affidavit, a review of the affidavit shows that it raises no genuine issue of material fact. The affidavit supports Plaintiff's claims that no Circuit judge independently reviews the orders to show cause and bench warrants prior to their issuance. Judge Kelly's affidavit indicates that only after Joseph Schewe, Director of Legal Services of FOC, an attorney and Assistant FOC, reviews the petitions is the digitized signature placed on the forms. (Kelly Aff., ¶¶ 6.e., 6.m.) Mr. Schewe is not a referee nor a judicial officer. Judge Kelly's statement that effective October 18, 1999 a new procedure is in place only shows that she reviews "listings." Whether this new procedure complies with the applicable statutes and whether it violates Plaintiff's constitutional rights are not issues before the Court. The Court's Opinion noted that injunctive relief could be available to a party if a judicial officer has violated a declaratory decree. (9/29/99 Opinion, p. 16)
III. PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT
Plaintiff moves for relief from judgment under Fed.R.Civ.P. 60(b)(2) claiming that Judge Kelly's affidavit presents new evidence regarding Plaintiff's claim that the hearings before the Friend of the Court and Wayne County Circuit Courts were illegal. The Court had found that Plaintiff had not submitted sufficient evidence to support the allegations of his complaint that the hearings were illegal. Plaintiff seeks an amendment of the Declaratory Judgment as to Count VI of Plaintiff's Complaint.
Because the Court will not consider Judge Kelly's affidavit, any new evidence in that affidavit is not before the Court. As noted above, Judge Kelly's affidavit does not change the facts which were before the Court. Plaintiff has not presented sufficient evidence regarding his claim under Count VI.
IV. PLAINTIFF'S MOTION FOR RELIEF SUPPLEMENTARY TO JUDGMENT
Plaintiff seeks to have the Court disqualify the Wayne County Circuit Court and the Friend of the Court from conducting any proceedings against or involving Plaintiff, to dissolve the sua sponte receivership created by the Wayne County Circuit Court, to correct the Wayne County Circuit Court and the Friend of the Court's support account, and to transfer the action to the St. Clair County Circuit Court pursuant to M.C.R. 3.212(B)(2)(C). Several hearings have been held before the Wayne County Circuit Court where the Court has refused to transfer the case and make any changes to Plaintiff's child support obligations. Plaintiff has also filed a bankruptcy action, which Plaintiff claims he may dismiss.
In response, Defendants claim that no actions by the Wayne County Circuit Court have been in violation of this Court's declaratory judgment. Defendants further claim that the administration of the Circuit Court's cases are not before this Court. The proper remedy for addressing any procedural issues is through the state court appellate system.
New claims brought by Plaintiff will not be addressed by the Court, including subsequent actions by the Wayne County Circuit Court. As noted by the Court in its opinion, a party may have a new cause of action for injunctive relief if he/she can show that the judicial officers have violated a federal court's declaratory judgment. Plaintiff has not presented any authority by which this Court could grant post-judgment injunctive relief. Also, the Court's judgment was declaratory and did not enjoin Defendants from any acts. The Court's Memorandum Opinion and Order and Judgment did not retain jurisdiction over enforcement of its Order. There is nothing for this Court to enforce at this time. As the Plaintiff has argued, the Court is without jurisdiction over the case, apart from the Rule 60(b) motion, since notices of appeal have been filed. The filing of a Notice of Appeal divests the district court of jurisdiction over the action and the appellate court assumes jurisdiction. Pittock v. Otis Elevator Co., 8 F.3d 325 (6th Cir. 1993) Additionally, for the reasons set forth in this Court's September 30, 1999 opinion, the Court is abstaining and has abstained from any issues between the parties, other than the due process issue, on which the court has entered a judgment in favor of Plaintiff. The only matter before the Court is the Rule 60(b) motion. The Court is without jurisdiction as to any other matters because jurisdiction has been transferred to the Court of Appeals based on both parties' notices of appeal.
V. DEFENDANTS' MOTION TO STRIKE
Defendants seek an Order striking: Plaintiff's Answer to Defendants' December 23, 1999 Motion for Sanctions; Plaintiff's Request for Evidentiary Hearing; and Plaintiff's Fed.R.Civ.P. 11(c)(1)(A) Request for Award of Reasonable Expenses and Attorney Fees Incurred to Respond to and Oppose Dependants' Motion for Sanctions. After reviewing the documents, including a Motion to Disqualify, Request for Supplementary Judgment and Motion for Relief from Judgment, Defendants determined that these documents were frivolous and filed in bad faith. In accordance with Rule 11(c)(1)(A), the "safe harbor" provision, Defendants served Plaintiff with a copy of their Motion for Sanctions. Rule 11(c) states that the motion shall not be filed if not submitted to the opposing party. In direct violation of Rule 11, Plaintiff submitted a copy of Defendants' Motion for Sanctions and request for an evidentiary hearing, before Defendants filed the motion. Plaintiff then filed a response to Defendants' unfiled Motion for Sanctions. As there was no motion filed, Plaintiff should not have filed a response.
Plaintiff has not filed a response to Defendants' motion to strike. As noted above, the Court has no jurisdiction over this matter based on the notices of appeal filed by the parties. The Court cannot consider documents not related to the Rule 60(b) motions.
VI. DEFENDANTS' SUGGESTION OF MOOTNESS AND MOTION TO VACATE THE SEPTEMBER 30, 1999 JUDGMENT AND TO DISMISS PLAINTIFF'S CLAIMS WITH PREJUDICE
Defendants claim that Plaintiff's claims are moot because he is no longer subject to the alleged procedures that he claims violate his rights to due process since the divorce action has been transferred to Macomb County Circuit Court. Defendants further claim that when a case becomes moot then the Judgment entered must be set aside. As this Court noted above, the Court no longer has jurisdiction over the Judgment, other than to rule on the Rule 60(b) motions. The Sixth Circuit's March 22, 2000 Order suggests that the Court review the mootness question based on Defendants' Motion to Vacate.
The doctrine of mootness requires that litigation have continuing vitality, even throughout the course of appellate review. Kremens v. Bartley, 431 U.S. 119 (1977). Although an actual controversy once existed, changed circumstances may intervene to destroy standing to the extent that the dispute is essentially ended and meaningful relief is no longer possible. Allen v. Mansour, 928 F.2d 404 (Table), 1991 WL 37832 **1 (6th Cir. Mach 19, 1991)(unpublished). Mootness applies where a plaintiff seeks a declaratory judgment invalidating or modifying a state policy and death prevents a plaintiff from benefitting in any way from the requested relief. Id. An exception to the mootness doctrine is whether the issue raised by the appeal is "capable of repetition, yet evading review." Id. at **2; See Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498 (1911); Roe v. Wade, 410 U.S. 113, 166 (1973). The party seeking to evade mootness must show that: 1) the challenged official action is likely to be repeated; 2) it will be of a duration too short to be fully litigated prior to its cessation or expiration; and 3) there is "a reasonable expectation that the same complaining party [will] be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 159 (1975).
One of the challenged official actions in this case is whether show cause orders and bench warrants are reviewed independently by a judicial officer. Based on the record below, it appears that the challenged official actions may likely be repeated. According to Judge Kelly's affidavit, the procedure prior to October 18, 1999 was that only after Joseph Schewe, Director of Legal Services of FOC, an attorney and Assistant FOC, reviewed the petitions was her digitized signature placed on the forms. (Kelly Aff., ¶¶ 6.e., 6.m.) Mr. Schewe is not a referee nor a judicial officer. Judge Kelly's statement that effective October 18, 1999 a new procedure is in place only shows that she reviews "listings," the constitutionality of which is not before this Court.
The Court considers Judge Kelly's affidavit on the mootness issue.
As to the second requirement for mootness, based on the record before the Court, there has been a showing that based on Judge Kelly's affidavit and the change in procedure, the duration of the challenged action regarding the judicial review of show cause orders and bench warrants may have ceased prior to the matter being fully litigated. However, there are other actions challenged by Plaintiff which may endure too briefly to be fully litigated prior to its cessation or expiration. Plaintiff has suggested that the order transferring his divorce action to the Macomb County Circuit Court was issued to support Defendants' mootness argument and to evade review. This argument may have had some merit if the order transferring the divorce action was entered sua sponte but the order was entered after Judge Callahan granted Plaintiff's motion to disqualify the Wayne County Circuit Court bench. (Ex. B to Plaintiffs' Response, 12/10/99 Tr., pp. 14-15)
Regarding the third requirement to establish mootness, Plaintiff is unable to show that as the complaining party he will be subjected to the same action again by the Defendants in this case. Plaintiff's divorce proceeding is no longer before the Wayne County Circuit Court.
There is no dispute that Plaintiff moved to disqualify the entire Wayne County Circuit Court bench to review his divorce action and that an order was entered transferring the case to the Macomb County Circuit Court. Plaintiff claims that the order entered transferring the case to the Macomb County Circuit Court was used to support Defendants' argument as to mootness. Plaintiff claims the procedures set forth by the State Court Administrator's Office were not followed. Plaintiff argues that the SCAO should have chosen the transferor County yet in the order transferring Plaintiff's divorce action, Judge J. William Callahan himself ordered the transfer to the Macomb County Circuit Court. For the reasons set forth previously, the Court will not review whether the order transferring the divorce action was entered properly since that claim is not before the Court.
Plaintiff further argues that he would face the same issues before the Macomb County Circuit Court. If Plaintiff were to be subjected to the same issues as he did in the instant case, those claims would be against different defendants than those named in the instant case. There is nothing before the Court to show that the Macomb County Circuit Court uses the same procedures for reviewing orders to show cause and bench warrants.
The Court finds that there is no longer a present, live controversy between the parties because the issues have been rendered moot by the transfer of Plaintiff's divorce action to the Macomb County Circuit Court. The Sixth Circuit will not be able to render a decision which would have an impact upon Plaintiff and the circumstances of the pending appeal do not fall within any well-recognized exception to the mootness doctrine. The Court certifies to the Sixth Circuit Court of Appeals that this Court is of the opinion that an order vacating the Judgment and dismissal should issue and requests a remand of the matter if the Court of Appeals so deems appropriate.
VII. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendants' Motion for Relief from Judgment (Docket No. 49, filed November 1, 1999) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Relief from Judgment (Docket No. 74, filed November 29, 1999) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Relief Supplementary to Judgment (Docket No. 71, filed November 19, 1999) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Strike documents in response to Defendants' unfiled Motion for Sanctions (Docket No. 89, filed January 18, 2000) is GRANTED.
IT IS FURTHER ORDERED that Defendants' Motion for Suggest of Mootness and Motion to Vacate the Judgment and Motion to Dismiss Plaintiff's Claims with Prejudice (Docket Nos. 92-1 and 92-2, filed February 1, 2000) is GRANTED pending the Sixth Circuit's order remanding the matter for entry of an order setting aside the Judgment and an order of dismissal of the case. The Court CERTIFIES to the Sixth Circuit Court of Appeals that this Court is of the opinion that an order setting aside the Judgement and an order of dismissal should issue and requests a remand of the matter if the Sixth Circuit so deems appropriate.