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Unites States v. Shanrie Co.

September 30, 2008

UNITES STATES OF AMERICA, PLAINTIFF,
v.
SHANRIE CO., INC., DAN SHEILS, AND NETEMEYER ENGINEERING ASSOCIATES,INC., DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. Introduction

Before the Court is Defendants Shanrie Company, Inc. and Dan Sheils' Motion for Modification of April 10, 2008 Order Adopting Remedial Plan (Doc. 198). The Plaintiffs have filed a response to this motion (Doc. 200). On August 21, 2008 the Court heard oral arguments in regards to Defendants' Motion. The Court took the arguments under advisement. Having considered the arguments of both parties, the Court finds that Defendants have not shown sufficient reason to modify the remedial plan.

II. Analysis

The Shanrie Defendants ask that the Court modify three provisions of the April 10, 2008 Remedial Order. As part of the Remedial Order, Shanrie Defendants were required to, among other things, take the following three actions: 1) purchase grab bars and surface mounted wing-its for installation in 20 of the ground floor units in Buildings 1-5; 2) provide written notice to residents that accessibility modifications can be installed upon request within 30 days without additional cost; and 3) complete various interior retrofits of individual units, primarily in Buildings 1-5, within one year. (Doc. 152). The Shanrie Defendants now to seek to modify the provisions of that order by: 1) requiring the Shanrie Defendants to only purchase four sets of grab bars and replenish the stock as needed; 2) extending the deadline to complete interior retrofits to units to two years, to allow completions to take place as units are vacated; and 3) requiring them to notify current residents of the availability of retrofitted ground units and the opportunity to transfer to those units at no additional cost. (Doc. 198).

Although the Shanrie Defendants fail to cite any procedural basis for their motion to modify the remedial plan, this Court construes the motion as a motion for relief from final judgment, order, or proceeding under Rule 60(b) of the Federal Rules of Civil Procedure. The only other basis for amending the remedial order would be under Rule 59(e) of the Federal Rules of Civil Procedure, but Rule 59(e) Motion to Alter or Amend a Judgment provides that a motion to alter judgment must be filed no later than 10 days after the entry of judgment, a time limit which cannot be extended. Fed. R. Civ. Pro. 59(e). Since the Shanrie Defendants filed their motion to alter judgment well after the 10 day time limit, the only possible basis for altering judgment would be under Rule 60(b).

Rule 60(b) provides that the court may have discretion to grant a moving party relief from a previous order in the following six circumstances:

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 59(b);

3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

4) the judgment is void;

5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospetively is no longer equitable; or

6) any other reason that justifies relied.

Fed. R. Civ. P. 60(b). Since the Shanrie Defendants do not rely on any of the first five provisions under Rule 60(b), it is presumed that they are ...


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