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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