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Powell v. Town of Georgetown

United States District Court, S.D. Indiana, New Albany Division

July 5, 2018

PAUL R. POWELL, Rev., Plaintiff,
v.
TOWN OF GEORGETOWN, INDIANA, MIKE MILLS, JAMES E. TRIPURE, JR., PATTI DENISON, KATHY HALLER, and JERRY BROCK, Defendants.

          ORDER DENYING MOTION TO SET ASIDE JUDGMENT

          TANYA WALTON PRATT, UNITED STATES DISTRICT COURT.

         This matter is before the Court on Plaintiff Paul R. Powell's (“Powell”) Motion to Set Aside Judgment filed pursuant to Federal Rule of Civil Procedure 60(b) (Filing No. 74). In connection with unpaid water bills and turning off water service at his rental properties, Powell asserted claims of constitutional violations against Defendants Town of Georgetown, Indiana (“the Town”), Mike Mills, James Tripure, Patti Denison, Kathy Haller, and Jerry Brock (collectively, “Defendants”). The Defendants sought and obtained summary judgment, and the Court entered final judgment against Powell. Following an unsuccessful appeal to the Seventh Circuit, Powell now moves to set aside the summary judgment ruling. For the reasons set forth below, Powell's Motion is denied.

         I. BACKGROUND

         During the relevant time period, Powell owned six rental properties in the Town. Several water bills for his rental properties were left unpaid by tenants. The Town threatened to not turn water services back on to those properties until Powell paid the delinquent balances in full. Powell filed an Amended Complaint against the Defendants, asserting that they violated his constitutional rights by disconnecting water service to his rental properties that had delinquent water bills and by refusing to restore water services until the bills were paid in full (Filing No. 18). His claims were for violations of his Equal Protection and Due Process rights, as well as an unconstitutional taking. Id.

         On February 22, 2016, the Defendants filed a Motion for Summary Judgment on Powell's claims (Filing No. 54). On February 26, 2016, Powell filed a cross Motion for Partial Summary Judgment (Filing No. 58). On May 19, 2016, the Court entered an Order granting the Defendants' Motion for Summary Judgment and denying Powell's cross Motion (Filing No. 64 at 8), and entered final judgment against Powell (Filing No. 65).

         Powell filed a motion to alter or amend the judgment, which the Court denied. Then Powell filed his Notice of Appeal and asked the Seventh Circuit to review the Court's May 19, 2016 Order and Judgment. On September 1, 2017, the Seventh Circuit dismissed Powell's appeal for failure to prosecute and issued its Mandate. The Seventh Circuit noted that, on August 8, 2017, it had struck Powell's noncompliant brief and had directed him to file a corrected brief by August 15, 2017. Powell failed to comply and was ordered on August 21, 2017, to show cause by August 28, 2017, why the appeal should not be dismissed for failure to prosecute. Powell again failed to respond. Thus, on September 1, 2017 the Seventh Circuit dismissed the appeal and issued its final order with mandate. (Filing No. 73 at 3).

         On December 5, 2017, Powell filed a Rule 60(b) Motion to Set Aside Judgment (Filing No. 74), asking the district court to set aside the May 19, 2016 summary judgment Order. Powell asserts that he recently discovered new evidence. He asserts that, sometime in September 2017, he contacted the Town to protest the most recent water disconnection, and the president of the Town Council, Everett Pullem, informed him that the Town has been advised by legal counsel that the Town's disconnection policy is illegal and the Town would immediately reconnect all water service to his rental properties. Pullem also stated that, despite the illegal nature of the disconnections, Powell is still responsible for all unpaid water charges that his tenants incurred (Filing No. 75 - 2).

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 60(b) provides:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct ...

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