United States District Court, S.D. Ohio, Western Division, Cincinnati
RYAN D. HOBBS, Plaintiff,
DEREK FAULKNER, et al., Defendants.
Michael R. Barrett District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
case is before the Court on Plaintiff's Objections (ECF
No. 88) to the Magistrate Judge's Report and
Recommendations on Motion for Relief from Judgment (ECF No.
86). Defendants have responded to the Objections (ECF Nos.
89, 90) and Judge Barrett has recommitted the case for
reconsideration in light of the Objections (ECF No. 91).
case is pending on appeal to the Sixth Circuit (Notice of
Appeal, ECF No. 77; 6th Cir. No. 19-3303). The
Magistrate Judge initially recommended deferring any ruling
on Plaintiff's Motion for Relief from Judgment until the
appeal is decided (Report, ECF No. 86).
Objections begin by asserting that “[t]he Court gave no
cogent reason why the Court could not rule to grant or deny
my Motion for Relief.” (ECF No. 88, PageID 1326). To
the contrary, the Report begins by citing governing Supreme
Court case law to the effect that a notice of appeal deprives
this Court of jurisdiction to grant the Motion.
argues the Court should not defer a ruling because the
gravamen of his Motion for Relief is that the judgment is
void because it was procured by fraud on the Court committed
by the undersigned and/or by the undersigned's collusion
with Defendants. He says he cannot raise this issue in the
current appeal because he has already filed his brief and is
not permitted to amend it to add this claim, which he says
“only came to light after an extensive and exhaustive
review of all the materials filed in this case, ” made
after he filed his Brief.
Burson, Lindenschmidt, and Downey argue that the Motion for
Relief should be denied. As a second choice, they agree with
deferral pending appeal (ECF No. 89). Defendants Faulkmer,
Planas, Bunner, Sebastainelli and Tepe adopt the same
arguments (ECF No. 90). Having read the motion papers, the
Magistrate Judge is persuaded that the better course is to
deny the Motion for Relief from Judgment now. Plaintiff, if
he wishes, can then appeal and offer the Sixth Circuit the
opportunity to consolidate the cases on appeal.
posits that he can show by clear and convincing evidence that
the undersigned “made knowingly false statements and
findings to this Court and in complete reckless disregard to
the truth” upon which Judge Barrett relied in entering
judgment (Motion, ECF No. 85, PageID 1312).
Report and Recommendations that Judge Barrett adopted in
dismissing the case is found at ECF No. 44. As supposedly
fraudulent statements in that Report, Hobbs points to PageID
1084 where the undersigned wrote: “Hobbs, on the other
hand has already unsuccessfully litigated his constitutional
claims in habeas and lost them. . . Hobbs already
unsuccessfully invoked that habeas forum: through his
own. fault. he filed too late." Hobbs asserts that
fraud on the court consists of [C]onduct:
(1) On the part of an officer of the court;
(2) That is directed to the "judicial machinery"
(3) That is intentionally false, willfully blind to the
truth, or is in reckless disregard for the truth;
(4) That is a positive avermcnt or is concealment when one is
under a duty to disclose; (5) That deceives the court.
(Motion, ECF No. 85, PageID 1313, citing Workman v.
Bell, 245 F.3d 849, 852 (6th Cir. 2001) (quoting
Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir.
1993)). The Magistrate Judge agrees that the quoted language
states the correct standard for proving fraud on a court. He
further agrees that he serves as an officer of the Court, and
that his Report and Recommendation was directed to the
judicial machinery itself in that the purpose of any report
and recommendations is for a Magistrate Judge to recommend to
a District Judge the decision of a dispositive matter. The
Magistrate Judge further agrees that his quoted statement was
a positive averment when he was under a duty ...