Montgomery v. Smith et al

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
GARY MONTGOMERY,
Plaintiff,
v.
PHILIP E. SMITH et al.,
Choose an item..
Case No. 3:23-cv-00275
Judge Aleta A. Trauger
Magistrate Judge Luke A. Evans
To: 	The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
Pending before the Court is pro se and incarcerated Plaintiff Gary Montgomery’s “Motion
to Set Aside Judgment of Dismissal for all Defendants and all Conversion Claims” (Doc. No. 83)
wherein he asks the Court for relief from its order that adopted the Magistrate Judge’s August 19,
2024 Report and Recommendation (R&R) and granted four separate motions to dismiss (Doc.
Nos. 75, 77).
For the reasons that follow, the Magistrate Judge will recommend that Montgomery’s
motion be granted and he be permitted time to raise objections to the R&R.
I. 	Relevant Background
On February 2, 2026, the Court issued an Order to Show Cause why Montgomery’s
remaining claims in this action should not be dismissed for his failure to effect service of process
on Defendants Lesley Burnett Montgomery (LBM) and Jonathan Taylor as required by Federal
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 1 of 10 PageID #: <pageID>

2
Rule of Civil Procedure 4(m). (Doc. No. 81.) Montgomery timely responded on February 12,
2026,1 and explained that
Plaintiff does not currently have any address by which he can provide notice of this
reply. However, except for LBM and Taylor. Plaintiff will immediately secure an
investigator to obtain their currently mailing addresses to provide to the Court and
for future filings. Otherwise, plaintiff is not trained in what to do in this situation.
Any assistance from the Court would be appreciated.
(Doc. No. 82 at 2.) Included in his show cause response is a lengthy explanation that the Tennessee
Department of Corrections (TDOC) moved Montgomery from the Davidson County Sheriff’s
Office (DCSO), where he initiated this action, to the TDOC intake facility at the Bledsoe County
Correctional Complex (BCCX). (Id. at 1.) Montgomery asserts that he “was in this restricted intake
environment for at least six (6) months” before eventually being transferred to the Morgan County
Correctional Complex (MCCX). (Id.)
Incorporating the explanation found in his show cause response, Montgomery also filed a
Motion to Set Aside Judgment of Dismissal for all Defendants and all Conversion Claims. (Doc.
No. 83.) Citing the multiple transfers to TDOC facilities, Montgomery asserts that he stopped
receiving the Court’s orders and other filings shortly after being transferred to BCCX. (Doc.
No. 82.) Montgomery specifically avers that he never received the R&R addressing four separate
1 	Under the “prison mailbox rule[,] . . . a pro se prisoner’s [pleading] is deemed filed when
it is handed over to prison officials for mailing to the court.” Brand v. Motley, 526 F.3d 921, 925
(6th Cir. 2008) (citing Richard v. Ray, 290 F.3d 810, 812–13 (6th Cir. 2002)). The rationale for
this rule is that “pro se prisoners have no control over delays between the prison authorities’ receipt
of [a pleading] and its filing, and their lack of freedom bars them from delivering the notice to the
court clerk personally.” Houston v. Lack, 487 U.S. 266, 273–74 (1988) (emphasis in original).
Courts assume, “absent contrary evidence,” that an incarcerated person handed over a
pleading to prison authorities “on the date he or she signed [it].” Brand, 526 F.3d at 925. Here,
however, the Court will refer to the date the respective TDOC facilities acknowledge receiving
Montgomery’s fillings, where available.
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 2 of 10 PageID #: <pageID>

3
motions to dismiss2 (Doc. No. 75) and, therefore, he did not have the opportunity to object to the
Magistrate Judge’s recommendation that the motions to dismiss be granted (Doc. No. 82).
On September 9, 2024, the Court accepted the Magistrate Judge’s recommendation in full
and dismissed Montgomery’s claim against all but three defendants. (Doc. No. 77.) As described
above, the record shows that Defendants LBM and Taylor have not been served or made
appearances in this action. As to the third remaining defendant, Thomas Longaberger, the Clerk
of Court granted Montgomery’s Second Motion for an Entry of Default on November 8, 2024.
(Doc. No. 80.)
Montgomery avers that he did not receive the November 8, 2024 Order and, more broadly,
he asks that the Clerk of Court
send to him a copy of the Court’s determination that some issues may go forward,
the Magistrate’s R & R, the Court’s adoption of Magistrate's R & R, the
Magistrate’s September 10, 2024 Order to Show Cause, the Clerk’s granting of his
default motion, and anything filed by any defendant in two and a half (2 ½) years.
(Doc. No. 82 at 2.)
Ultimately, Montgomery seeks copies of prior orders and filings and an Order setting aside
the dismissals of the claims as set forth in the R&R because he believes he may soon be released
from prison and he would like to continue prosecuting this action. (Id.)
II. 	Legal Standard
Montgomery does not specify under which authority the Court should grant relief from the
orders of dismissal. However, construing his motion liberally as a pro se litigant, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), the Court finds that Montgomery’s arguments in support of his
2 	The Estate of Judge Philip E. Smith filed one motion (Doc. No. 43), as did William H.
Stover (Doc. No. 47). Defendants Doug Rogers, Brandon Schneider, Birthright Title, Property
Title Services, Exit Real Estate Solutions collectively filed a motion to dismiss (Doc. No. 27) and
Vicki Hertel and Regal Realty Group filed a joint motion (Doc. No. 35).
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 3 of 10 PageID #: <pageID>

4
motion implicate Rule 60(b) as a Motion for Relief from a Judgment or Order. Rule 60 sets forth
motions seeking “Relief From a Judgment or Order” and provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. 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 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 prospectively is no longer equitable; or
(6) 	any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Regardless of which provision Montgomery relies on, Rule 60 requires that
“[a] motion under Rule 60(b) must be made within a reasonable time . . . .” Fed. R. Civ. P. 60(c)(1).
III. 	Analysis
A. 	Timeliness
Montgomery filed the instant motion over seventeen months after the Court issued its order
dismissing the claims against those defendants that filed motions to dismiss. Of the defendants that
filed motions to dismiss that were the subjects of the R&R, Hertel, Stover, and Regal Realty Group
each filed responses in opposition to the motion (Doc. Nos. 84, 85, 87), and Birthright Title, Exit
Real Estate Solutions, Property Title Services, Doug Rogers, and Brandon Schneider collectively
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 4 of 10 PageID #: <pageID>

5
filed a joinder to Stover’s response in opposition (Doc. No. 86). All oppose Montgomery’s motion
as untimely under the Federal Rules of Civil Procedure.
In her response, Hertel argues that, although Montgomery did not articulate whether his
motion was filed under Rule 59 or Rule 60, it is untimely under either circumstance. (Doc. No. 84.)
The remaining responses focus solely on timeliness as controlled by Rule 60(b). (Doc. Nos. 85,
86, 87.) Hertel correctly asserts that a motion for relief under Rule 59 must be filed within twenty-
eight days of an entry of judgment. Fed. R. Civ. P. 59(e). However, as detailed above, the Court
construes Montgomery’s request as a motion under Rule 60(b). Cf. Moore v. Lee, No.: 3:22-cv-
363, 2023 WL 11897632, at *2 (E.D. Tenn. Nov. 16, 2023) (construing a pro se plaintiff’s request
as a Rule 60(b) motion where he did not articulate grounds for relief). See also id. (exercising
discretion to “characterize [plaintiff’s] filings in a way that best capture[d] the substance of those
filings.”) (quoting United States v. Altiery, No. 2:13-CR-42, 2022 WL 3971106, at *3 (E.D. Tenn.
Aug. 30, 2022)).
Even construed liberally, the Court finds that Montgomery’s motion does not allege that
relief should be provided under Rule 60 due to newly discovered evidence or fraud, nor does his
filing suggest relief should be granted because the judgment is void or has been satisfied, released,
or discharged. Fed. R. Civ. P. 60(b)(2)–(5). The Court thus construes Montgomery’s motion as
relying, in part, on 60(b)(1) and its “excusable neglect” provision.
Here, Defendants argue that Montgomery’s Rule 60(b)(1) motion is untimely because “[a]
motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3)
no more than a year after the entry of the judgment or order or the date of the proceeding.” (Doc.
Nos. 84, 85, 86, 87 (citing Fed. R. Civ. P. 60(c)(1)).) Defendants’ argument is correct that there is
a one-year limit where a movant seeks relief on the theory of excusable neglect. Insofar as
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 5 of 10 PageID #: <pageID>

6
Montgomery’s motion relies on Rule 60(b)(1), the Court finds that it is untimely because he filed
his motion well after the one-year limit.
As other courts have explained, however, “[i]f relief is not warranted under Rule 60(b)(1),
the Court may then consider application of the ‘catch-all provision’ of Rule 60(b)(6).” Wicks v.
Hopkins Cnty. Det. Ctr., CIVIL ACTION NO. 4:20-CV-P158, 2023 WL 12079049, at *2 (W.D.
Ky. Apr. 	5, 	2023) 	(citing 	Henness 	v. 	Bagley, 	766 	F.3d 	550, 	553 	(6th 	Cir. 	2014)).
“Rule 60(b)(6) . . . applies in ‘unusual and extreme situations where principles of equity mandate
relief.’” Cooper v. United States, Case No. 3:19-cv-01007, 2023 WL 6690929, at *2 (M.D. Tenn.
Oct. 12, 2023) (quoting McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750 (6th Cir.
2013)).
Unlike a Rule 60(b)(1) motion that must be filed within a reasonable time not to exceed
one year after an entry of a judgment or order, a motion seeking relief under the catchall provision
of Rule 60(b)(6) merely “‘must be made within a reasonable time’ after a judgment or order is
entered.” Jackson v. Nagy, No. 19-1002, 2019 WL 11753774, at *2 (6th Cir. Apr. 3, 2019) (quoting
Fed R. Civ. P. 60(c)(1)). “Whether the timing of the motion is reasonable ‘ordinarily depends on
the facts of a given case including the length and circumstances of the delay, the prejudice to the
opposing party by reason of the delay, and the circumstances compelling equitable relief.’” 	Id.
(quoting Thompson v. Bell, 580 F.3d 423, 443 (6th Cir. 2009).
B. 	Equitable Relief Under the Circumstances
As explained above, Montgomery filed his motion for relief from the order adopting the
R&R and granting Defendants’ motions to dismiss seventeen months after the Court issued its
Order. However, under the circumstances, the Court must determine whether Montgomery
nevertheless acted within a reasonable amount of time.
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 6 of 10 PageID #: <pageID>

7
Montgomery asserts that it was not until he received the Court’s February 2, 2026 order to
show cause that he became aware that Defendants’ motions to dismiss were granted by order
adopting the R&R. (Doc. No. 82 at 1.) Once notified, Montgomery promptly filed his response to
the Order to Show Cause and filed the instant motion on February 12, 2026, just ten days after he
learned of the Court’s order. Montgomery’s response to the show-cause order also sets out facts
in support of this motion.
The docket reflects that, in Montgomery’s April 25, 2024 Notice of New Mailing Address
(Doc. No. 67), he avers that he was transferred from DCSO to BCCX on March 8, 2024, and states
that he “ha[d] not received any filings . . . from the Court or any Defendants . . . since the last week
of February [2024] . . . .” (Id. at 1.) Accordingly, Montgomery requested that any filings made in
the intervening period be resent to him. (Id. at 2.) The Clerk’s Office updated Montgomery’s
mailing address and mailed Montgomery a copy of the then-current docket sheet and copies of two
summonses returned by the U.S. Marshals Service. (Doc. No. 68.) On May 21, 2024, mail
addressed to Montgomery that included a copy of a returned summons was returned to the Clerk’s
Office with the notation “Return to Sender No Mail Receptacle Unable to Forward[.]” (Doc.
No. 71.)
The docket further reflects that no additional action was taken until July 26, 2024, when
Montgomery filed a second motion seeking an entry of default against Defendant Longaberger.
(Doc. No. 72.) The address on that correspondence shows Montgomery was still incarcerated at
the same BCCX address as that provided in his Notice of New Mailing Address. (Doc. Nos. 67,
72.) Roughly a month later on August 19, 2024, the Magistrate Judge filed her R&R and the docket
reflects that a copy was sent to Montgomery by regular mail. (Doc. No. 75.) No mail was returned
undeliverable nor did the Clerk’s Office receive any response to the R&R, so the Court issued its
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 7 of 10 PageID #: <pageID>

8
order adopting the R&R and dismissing Montgomery’s claims on September 9, 2024. (Doc.
No. 77.)
Although the Court issued Montgomery an order to show cause why his remaining claims
against LBM and Taylor should not be dismissed for failure to effect service on September 10,
2024 (Doc. No. 78), no further action was taken by any of the parties until the Clerk’s Office
received Montgomery’s notification of his change of address on November 8, 2024 (Doc. No. 79).
In his notice, Montgomery explained that he was transferred to MCCX on October 24, 2024, and
he requested that any mail sent to BCCX after that date be forwarded to his address at MCCX.
(Id.)
Courts have clearly explained that “it is the litigant[,]” even a pro se litigant, “and ‘not the
court . . . who bears the burden of . . . ‘monitor[ing] the court’s docket.” Wicks, 2023 WL
12079049, at *2 (second alteration in original) (quoting Yeschick v. Mineta, 675 F.3d 622, 630
(6th Cir. 2012)). The Court finds that, while there was some delay, Montgomery was mindful of
updating his address and requesting copies of any outstanding filings during this time.
The fact that most undermines Montgomery’s argument is that, after he notified the Court
of his new address in November 2024, he took no other action for over one year. Montgomery
attests that, while in TDOC’s custody, “he was waiting for a response to his motions for default
judgment and Summary Judgement3” but that he “did not receive anything from the Court
regarding these motions” nor did he receive notice that the Clerk granted his second motion for
3 	Montgomery asserts that he was waiting on the status of a Motion for Summary Judgement,
but there is no such motion on the docket. The Court assumes he meant Defendants’ Motions to
Dismiss that he previously briefed.
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 8 of 10 PageID #: <pageID>

9
entry of default or any of the filings regarding the R&R, the Order, and Order to Show Cause.
(Doc. No. 82 at 1.)
Under the procedural and logistical circumstances present here, the Court will exercise its
discretion and grant Montgomery’s motion. Wicks, 2023 WL 12079049, at *2 (recognizing courts
have “broad discretion in ruling on a motion under Rule 60(b).”) (citing Tyler v. Anderson, 749
F.3d 499, 509 (6th Cir. 2014)). While Montgomery arguably waited an unreasonable amount of
time to ascertain the status of his motions when he waited over one year, he responded promptly
when notified by the Court’s order to show cause that Defendants’ motions to dismiss were
granted. Moreover, and absent evidence that Montgomery has been or is now acting in bad faith,
the Court “finds that manifest injustice would result from the failure to reopen these proceedings
to 	allow 	objections 	to 	the 	R&R, 	such 	that 	‘principles 	of 	equity 	mandate 	relief’ 	under
Rule 60(b)(6).” Cooper, 2023 WL 6690929, at *3 (quoting McGuire, 738 F.3d at 750).
IV. 	Recommendation
Accordingly, the Magistrate Judge RECOMMENDS that Montgomery’s Motion to Set
Aside Judgment of Dismissal for all Defendants and all Conversion Claims (Doc. No. 83),
construed as a motion under Rule 60(b)(6), be GRANTED. The Magistrate Judge further
RECOMMENDS that the Court’s order entered September 9, 2024 (Do. No. 77) be VACATED,
and this case be reopened for the limited purpose of allowing Montgomery to file objections to the
Magistrate Judge’s R&R (Doc. No. 75). As a result, the Magistrate Judge RECOMMENDS that
the Clerk be DIRECTED to mail copies of the following docket entries to Montgomery:
• 	Memorandum Opinion of the Court (Doc. No. 3);
• 	the Magistrate Judge’s R&R (Doc. No. 75);
• 	the September 10, 2024 Order to Show Cause regarding the yet-to-be
served Defendants (Doc. No. 78); and
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 9 of 10 PageID #: <pageID>

10
• 	the Clerk’s order granting Montgomery’s Second Motion for Entry of
Default (Doc. No. 80).
Although Montgomery seeks a copy of the service-related order to show cause, the
Magistrate finds that his brief “Note[s] Regarding Service” (Doc. Nos. 82, 83) are a sufficient
response for purposes of that order. Because Montgomery expresses a desire to employ the services
of an investigator to identify addresses for Defendants LBM and Taylor, the Magistrate Judge
RECOMMENDS that the Clerk be DIRECTED to mail Montgomery blank summonses and
USM 285 forms for those two defendants.
Finally, the Magistrate Judge RECOMMENDS that Montgomery be ORDERED to
return the complete summonses to the Clerk’s Office within 30 DAYS after receiving the blank
forms and that upon return of the completed service packets, that PROCESS SHALL ISSUE to
the defendants.
Any party has 14 DAYS after being served with a copy of the Report and Recommendation
to file specific written objections. Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of appeal of the matters decided. Thomas
v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). A party
who opposes any objections that are filed may file a response within fourteen days after being
served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 11th day of March, 2026.
____________________________________
LUKE A. EVANS
United States Magistrate Judge
Case 3:23-cv-00275 Document 92 Filed 03/11/26 Page 10 of 10 PageID #: <pageID>