American Federation of State, County & Municipal Employees, Council 62, Local 4009 AFL-CIO, and the Executive Branch of Gary, Indiana v. Gary Police Civil Service Commission (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Mar 11 2016, 5:53 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Douglas M. Grimes Clorius L. Lay
Douglas M. Grimes, PC Gary, Indiana
Gary, Indiana
IN THE
COURT OF APPEALS OF INDIANA
American Federation of State, March 11, 2016
County & Municipal Employees, Court of Appeals Case No.
Council 62, Local 4009 AFL-CIO, 45A04-1507-PL-1017
and the Executive Branch of the City Appeal from the Lake Superior
of Gary, Indiana, Court.
The Honorable Michael N. Pagano,
Special Judge.
Appellants-Defendants,
Cause No. 45D09-1405-PL-70
v.
Gary Police Civil Service
Commission and its
Administrator, Angela Brown,
Appellees-Plaintiffs.
Shepard, Senior Judge
[1] The Gary Police Civil Service Commission and its administrator Angela Brown
prevailed on summary judgment after the American Federation of State,
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County & Municipal Employees failed to respond to the motion. Seven
months later, AFSCME filed a motion for relief from judgment. The trial court
denied the motion, and we affirm.
Issue
[2] The sole issue for review is whether the court abused its discretion in denying
AFSCME’s motion for relief from judgment.
Facts and Procedural History
[3] In 2006, the Gary Police Civil Service Commission hired Angela Brown to be
its administrator. Subsequently, a dispute arose as to whether Brown’s job was
covered by union rules. On May 1, 2013, the Commission and Brown sued
AFSCME and the Executive Branch of the City of Gary, seeking injunctive
relief to prevent removal of Brown from her job.
[4] Over the next year, the case shifted from court to court in Lake County as
various judges recused. On May 14, 2014, the Honorable Michael N. Pagano
became special judge. He ordered a status conference for July 7, 2014, and
directed the parties to file their documents with the Lake County Clerk
electronically rather than on paper. AFSCME did not appear at the July 7
conference.
[5] On August 5, 2014, the Commission and Brown electronically filed a motion
for summary judgment. AFSCME did not respond, so on September 24, 2014,
the Commission and Brown electronically filed a motion for entry of judgment.
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There was no response from AFSCME. On October 10, 2014, the Commission
and Brown again requested judgment. On October 14, 2014, the trial court
granted the motion for summary judgment, enjoining the City of Gary and
AFSCME from enforcing provisions of the collective bargaining agreement
against Brown.
[6] On May 8, 2015, AFSCME moved for relief from judgment. The Commission
and Brown responded, and the trial court held oral argument, after which it
denied AFSCME’s motion.
Discussion and Decision
[7] AFSCME claims it was entitled to relief from judgment. Indiana Trial Rule
60(B) provides, in relevant part:
On motion and upon such terms as are just the court may relieve
a party or his legal representative from a judgment, including a
judgment by default, for the following reasons:
****
(8) any reason justifying relief from the operation of the
judgment, other than those reasons set forth in sub-paragraphs
1
(1), (2), (3), and (4).
[8] A movant requesting relief under subsection (8) must demonstrate a meritorious
claim or defense. Id. In addition, a party seeking relief under subsection (8)
1
In its motion for relief from judgment, AFSCME also requested relief under Trial Rule 60(B), subsections
(1), (6), and (7). AFSCME has not presented any argument related to those subsections on appeal, so we do
not address them.
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must show that its failure to act is not merely due to an omission involving
mistake, surprise, or excusable neglect. Weppler v. Stansbury, 694 N.E.2d 1173(Ind. Ct. App. 1998). Instead, relief under subsection (8) is reserved for cases in
which extraordinary circumstances justify extraordinary relief. McIntyre v.
Baker, 703 N.E.2d 172 (Ind. Ct. App. 1998). We review a trial court’s ruling on
a Rule 60(B)(8) motion for abuse of discretion. Outback Steakhouse v. Markley,
856 N.E.2d 65 (Ind. 2006).
[9] AFSCME first says that the court should have allowed it to pursue discovery
and should have held an evidentiary hearing before ruling on the motion. In its
motion for relief, AFSCME neither requested permission to pursue discovery
nor requested an evidentiary hearing. Moreover, AFSCME did not attempt to
submit evidence at the oral argument. The court cannot have abused its
discretion in failing to grant relief that AFSCME did not request.
[10] Next, AFSCME asserts it was entitled to relief because it did not receive the
motion for summary judgment and was denied the opportunity to issue
discovery requests. It is apparent that AFSCME did not receive the motion
because its counsel had not registered with the Lake County Clerk to participate
in e-filing. In its May 14, 2014 order (which was sent by mail but which
AFSCME claimed not to have received), Judge Pagano ordered the parties to
file documents electronically. In addition, the Commission and Brown’s
counsel telephoned AFSCME’s counsel after the July 7, 2014 status conference
(which AFSCME did not attend) and informed him that the parties would be
required to file all documents “electronically.” Appellees’ App. p. 18. Thus,
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AFSCME was informed before the Commission and Brown filed their motion
for summary judgment that it was necessary to participate in e-filing, yet
AFSCME’s counsel did not register with the Lake County Clerk until
November 8, 2014, after judgment had been granted.
[11] As to discovery requests, AFSCME has not explained what information it
expected to gather through discovery. The case was filed in May 2013, so
AFSCME had two years to evaluate any discovery needs and should have been
able to tell Judge Pagano why discovery was necessary. These facts do not
present extraordinary circumstances justifying relief under Trial Rule 60(B)(8).
[12] Finally, the Commission and Brown correctly observe that AFSCME has not
articulated any defense to the merits of their complaint for injunctive relief. See
Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299 (Ind. Ct. App. 2012) (no abuse
in denying Rule 60(B) motion where plaintiff failed to raise meritorious
defense), trans. denied.
Conclusion
[13] For the foregoing reasons, we affirm the judgment of the trial court.
[14] Affirmed.
Riley, J., and Bailey, J., concur.
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