2021 WL 1827252

NOT FOR PUBLICATION
United States District Court, D. New Jersey.
STANLEY JARKA, CRYSTAL JARKA, H/W, SHINA DESHONG and LAUREN DUNHAM Plaintiffs,
v.
WILLIAM HOLLAND A/K/A WILLIAM MAURICE HOLLAND, JR. and D.M. BOWMAN, INC., Defendants.
Case No. 3:13-cv-01912 (BRM) (TJB)
|
Filed 05/07/2021

OPINION
BRIAN R. MARTINOTTI United States District Judge
*1 Before this Court is Plaintiffs Stanley Jarka, Crystal Jarka, Shina DeShong, and Lauren Dunham’s (“Plaintiffs”) Motion for Partial Reconsideration of the Court’s November 16, 2020, Opinion and Order (ECF Nos. 99 and 100) granting summary judgment on the issue of punitive damages. (ECF No. 103.) Defendants William Holland a/k/a William Maurice Holland, Jr. (“Holland”) and D.M. Bowman, Inc.’s (“Bowman”) (together, “Defendants”) oppose the Motion. (ECF No. 104.) Having reviewed the parties’ submissions filed in connection with the Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good cause shown, Plaintiffs’ Motion for Partial Reconsideration is DENIED.

I. Background1
The underlying facts are set forth at length in the Court’s November 16, 2020 Opinion (ECF No. 99), from which Plaintiffs seek reconsideration. In the interest of judicial economy, the Court refers the parties to that Opinion for a full recitation of the factual and procedural background of this dispute.

Briefly, this personal injury lawsuit arises from the collision of a tractor trailer and a New Jersey Transit (“NJT”) train that occurred on the evening of November 12, 2012, at approximately 7:15 p.m. All of the Plaintiffs were NJT employees and were on the train at the time of the collision, with the exception of Crystal Jarka, the spouse of Stanley Jarka. Holland was operating a Volvo tractor trailer, which Bowman owned, in the scope of his employment as an agent of Bowman. Holland was lost in a residential neighborhood on his way to making a delivery and asked a local pedestrian for directions. Holland followed the pedestrian’s directions and made a right turn at an intersection, and his tires became lodged on railroad tracks for approximately 14 minutes. Holland did not contact Bowman or NJT to inform them the tractor tailor was stuck on the tracks, nor did Holland employ the inter axle differential lock technique that would have caused the tractor trailer to extricate itself from the tracks. The train collided with the tractor trailer, which Plaintiffs alleged caused them to suffer serious and permanent injury. Plaintiffs filed a complaint on March 26, 2013 (ECF No. 1) and subsequently filed an Amended Complaint on May 1, 2019 (the “Amended Complaint”) pursuant to Court approval (ECF No. 67). On March 25, 2020, Defendants filed a motion for partial summary judgment as to any claims of direct corporate liability against Bowman and any claim of punitive damages against Defendants. (ECF No. 92.) On May 4, 2020, Plaintiffs opposed (ECF No. 97), and on May 11, 2020, Defendants filed a reply. (ECF No. 98). On November 16, 2020, the Court denied Defendants’ motion for summary judgment as to the corporate liability claims and granted summary judgment as to any claim of punitive damages against Defendants. (ECF No. 100.) On December 3, 2020, Plaintiffs filed a Motion for Partial Reconsideration on punitive damages. (ECF No. 103.) On December 10, 2020, Defendants filed an opposition. (ECF No. 104.)

II. Legal Standard
*2 While not expressly authorized by the Federal Rules of Civil Procedure, motions for reconsideration are proper pursuant to this District’s Local Civil Rule 7.1(i) if there are “matters or controlling decisions which counsel believes the Judge … has overlooked.” L. Civ. R. 7.1(i); Dunn v. Reed Grp., Inc., Civ. A. No. 08-1632, 2010 WL 174861, at *1 (D.N.J. Jan. 13, 2010). The comments to that Rule make clear, however, that “reconsideration is an extraordinary remedy that is granted ‘very sparingly.’ ” L. Civ. R. 7.1(i) cmt. 6(d) (quoting Brackett v. Ashcroft, Civ. A. No. 03-3988, 2003 WL 22303078, *2 (D.N.J. Oct. 7, 2003)). In that regard, the Third Circuit has held the scope of a motion for reconsideration is “extremely limited.” Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011); see Langan Eng’g & Envtl. Servs., Inc. v. Greenwich Ins. Co., Civ. A. No. 07-2983, 2008 WL 4330048, at *1 (D.N.J. Sept. 17, 2008) (explaining that a motion for reconsideration under Rule 7.1(i) is “ ‘an extremely limited procedural vehicle,’ and requests pursuant to th[is] rule[ ] are to be granted ‘sparingly’ ”) (citation omitted); Fellenz v. Lombard Inv. Corp., 400 F. Supp. 2d 681, 683 (D.N.J. 2005).

“Such motions are not to be used as an opportunity to relitigate the case; rather, they may be used only to correct manifest errors of law or fact or to present newly discovered evidence.” Rowe v. Superintendent Albion SCI, Civ. A. No. 19-1744, 2019 WL 11790187, at *1 (3d Cir. Sept. 9, 2019), cert. denied sub nom. Rowe v. Clark, 140 S. Ct. 1143 (2020). Accordingly, an order or judgment may only be altered or amended if the party seeking reconsideration shows at least one of the following grounds: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [made its initial decision]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” United States ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 848–49 (3d Cir. 2014). The Third Circuit has defined “new evidence” for purposes of a motion for reconsideration:
[N]ew evidence, for reconsideration purposes, does not refer to evidence that a party submits to the court after an adverse ruling. Rather, new evidence in this context means evidence that a party could not earlier submit to the court because that evidence was not previously available. Evidence that is not newly discovered, as so defined, cannot provide the basis for a successful motion for reconsideration.
Blystone, 664 F.3d at 415–16 (citations omitted).

Additionally, a court commits clear error of law “only if the record cannot support findings that led to the ruling.” ABS Brokerage Servs., LLC v. Penson Fin. Servs., Inc., Civ. A. No. 09-4590, 2010 WL 3257992, at *6 (D.N.J. Aug. 16, 2010) (citing United States v. Grape, 549 F.3d at 591, 603–04 (3d Cir. 2008)). “Thus, a party must … demonstrate that (1) the holdings on which it bases its request were without support in the record, or (2) would result in ‘manifest injustice’ if not addressed.” Id. (citing United States v. Grape, 549 F.3d 591, 603–04 (3d Cir. 2008)).

In short, “[m]ere ‘disagreement with the Court’s decision’ does not suffice.” ABS Brokerage Servs., 2010 WL 3257992, at *6 (quoting P. Shoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001)); see also United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999) (“Mere disagreement with a court’s decision normally should be raised through the appellate process and is inappropriate on a motion for [reconsideration].”); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc. 680 F. Supp. 159, 163 (D.N.J. 1988); Schiano v. MBNA Corp., Civ. A. No. 05-1771, 2006 WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere disagreement with the Court will not suffice to show that the Court overlooked relevant facts or controlling law, … and should be dealt with through the normal appellate process ….”) (citations omitted).

III. Decision
*3 Plaintiffs move for reconsideration, arguing the Court failed to view the evidence in the light most favorable to Plaintiffs, the non-moving party, and such failure resulted in the Court rendering “a mistaken opinion and inappropriate order,” which granted Defendants’ motion for summary judgment on punitive damages. (ECF No. 103-1 at 8.) According to Plaintiffs, “a jury could easily conclude [Defendants’] conduct warrants the award of punitive damage.” (Id. at 11.)

The Court’s November 16, 2020 Opinion clearly identified and applied the proper legal standard for a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). (See ECF No. 99 at 3–4 (providing standard for summary judgment and stating, in relevant part, “[a] factual dispute is genuine only if there is ‘a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party,’ ” and “the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor’ ”).)

Initially, Plaintiffs do not identify any intervening change in the relevant law or new evidence that was unavailable at the time this Court entered its decision. Consequently, Plaintiffs’ Motion rests solely on the contention that this Court’s decision contains an error of fact or law that, if left uncorrected, would result in some manifest injustice. (See ECF No. 103-1 at 1 (arguing that the Court “did not take the evidence in the light most favorable to the plaintiffs, the non-moving parties, and that this failure resulted in the Court[ ] rendering a mistaken opinion and an inappropriate order,” that incorrectly “dismissed plaintiffs’ claims for punitive damages”).

The Court finds Plaintiffs disagree with the Court’s decision and are essentially asking the Court to rethink what it has already thought through. Parker v. Fulton, Civ. A. No. 198926, 2020 WL 5096990, at *2 (D.N.J. Aug. 28, 2020) (citing Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002)). As the Court stated in its prior Opinion, on a motion for summary judgment, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” (ECF No. 99 at 3–4.) After applying this standard, as it must, the Court concluded “[n]othing in the evidence produced by Plaintiffs suggests Defendants acted with ‘actual malice.’ ” (Id. at 9.)2 Indeed, after review of the summary judgment record, the Court found:
Plaintiffs did not provide evidence of intentional wrongdoing, nor did they show Defendants were evil-minded. Plaintiffs produced no evidence Defendants acted with “wanton and willful disregard” toward Plaintiffs. There is no evidence of Defendants deliberately acting or failing to act while knowingly risking harm to another. Indeed, nothing in the record intimates Defendants acted with reckless indifference to the consequences of their actions to Plaintiffs. See Spitko v. Harrah’s Atl. City Operating Co. LLC, No. CV 16-0489 (JBS-KMW), 2019 WL 1399549, at *7 (D.N.J. Mar. 28, 2019); Henry v. St. Croix Alumina, LLC, 527 F. App’x 114, 120 (3d Cir. 2014).
(Id.) Quite simply, the Court held, considering the evidence in a light most favorable to the plaintiff, “Plaintiffs [ ] made no showing from which a reasonable jury could find that Defendants acted with actual malice or wanton and willful disregard.” (Id. at 10.) Indeed, “[a]t most, Plaintiffs may have alleged negligence by the Defendants, but not wanton and willful disregard of the likelihood of resulting serious harm. Plaintiffs are therefore not entitled to recover punitive damages.” (Id.)

*4 Here, Plaintiffs have merely expressed disagreement with the Court’s conclusions. It is not proper to use a motion for reconsideration “to ask the court to rethink what it had already thought through—rightly or wrongly.” Oritani S & L v. Fid. & Deposit of Md., 744 F. Supp. 1311, 1314 (D.N.J. 1990); Syncsort Inc. v. Innovative Routines Int’l, Inc., Civ. A. No. 04-3623, 2008 WL 11381901, at *3 (D.N.J. July 30, 2008); see also Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998) (“A party seeking reconsideration must show more than a disagreement with the Court’s decision …. Nor is a motion for reconsideration properly grounded on a request that a court rethink a decision already made.”) (citations omitted). Plaintiffs merely encourage this Court to “analyze the same facts and cases it already considered” to come to a different conclusion. Tehan v. Disability Mgmt. Servs., 11 F. Supp. 2d 542, 549 (D.N.J. 2000). Asking this Court to “rethink” its holding is not an appropriate basis upon which to seek reconsideration. See Oritani Sav. & Loan Ass’n, 744 F. Supp. at 1314. In other words, Plaintiffs’ attempts to take a second bite at the apple cannot be grounds for granting a motion for reconsideration. Tischio, 16 F. Supp. 2d at 533 (D.N.J. 1998) (“A motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple.”) (citation omitted); Dando v. Bimbo Food Bakeries Distribution, LLC, Civ. A. No. 14-2956, 2017 WL 2861650, at *2 (D.N.J. July 5, 2017).

Accordingly, Plaintiffs’ Motion is denied.

IV. Conclusion
For the reasons set forth above, Plaintiffs’ Motion for Reconsideration is DENIED. An appropriate Order follows.

All Citations
Slip Copy, 2021 WL 1827252

Footnotes

1
Under Local Civil Rule 7.1(i), motions for reconsideration are required to be filed within fourteen (14) days after entry of the order or judgment. Gaines v. Busnardo, Civ. A. No. 13-6566, 2015 WL 5771233, at *6 (D.N.J. Sept. 30, 2015). Here, the Court granted Plaintiffs’ timely request for an extension of time to file the Motion. (See ECF Nos. 101 and 103.)

2
In evaluating a motion for summary judgment, the Court must view the material facts in the light most favorable to the non-moving party and make every reasonable inference in that party’s favor. Webster v. Dollar Gen., Inc., 197 F. Supp. 3d 692, 702 (D.N.J. 2016).

2021 WL 1819831
CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio, Tenth District, Franklin County.
Basil Gibbs, Plaintiff-Appellee,
v.
Burley Trucking, L.L.C. et al. Defendants-Appellants.
No. 20AP-357
|
Rendered on May 6, 2021
(C.P.C. No. 18CV-5632)
APPEAL from the Franklin County Court of Common Pleas
Attorneys and Law Firms
On brief: Law Office of Brian M. Garvine, LLC, and Brian M. Garvin, for appellee. Argued: Brian Garvin.
On brief: Favor Legal Services, and H. Macy Favor, Jr., for appellants. Argued: H. Macy Favor, Jr.

DECISION
BEATTY BLUNT, J.
*1 { ¶ 1} Defendants-appellants, Burley Trucking, L.L.C. and JAC Burley Trucking, L.L.C.(“L.L.C.s”), appeal the decision of the Franklin County Court of Common Pleas denying their second motion for relief from judgment pursuant to Civ.R. 60(B) following the trial court’s grant of a default judgment against them. Their co-defendants Kelvin Burley and Ernest Burley have not appealed this ruling and are not parties to this appeal. The L.L.C.s assert two assignments of error with the trial court’s ruling denying relief from judgment:
[I]. The trial court erred in its decision and entry filed on July 2, 2020, by its failure to consider affidavits filed and incorporated in defendant-appellants’ second motion for relief from judgment pursuant to Civ. R. 60(B).
[II.] The trial court erred in its decision and entry filed on July 2, 2020, by its failure to properly apply the allegations, or lack thereof, contained in the complaint to the elements identified in the case Saavedra v. Mikado Japanese Steak House & Sushi.

{ ¶ 2} This court has previously reviewed the underlying default judgment, but only as it applied to defendant Kelvin Burley. See Gibbs v. Burley, 10th Dist. No. 19AP-141, 2020-Ohio-38 (“Burley I“). We reversed and remanded the default judgment against Burley, holding that the trial court had improperly granted a default judgment against him personally without first reviewing whether plaintiff’s complaint failed to state a claim against him personally. Id. at ¶ 9-18. Burley had appealed the default judgment pro se, and the L.L.C.s, who had not participated in the litigation up to that point did not appeal at that time. In reaching our decision, we observed that “[neither] of those entities is a party to this appeal * * * and we previously have held that outside of small claims court, a non-lawyer may not litigate on behalf of a limited liability company * * *.” Id. at ¶ 18, fn. 1. Following this court’s remand in Burley I, the L.L.C.s entered an appearance in the case and filed the Civ.R. 60(B) motion which was denied by the court and is now the subject of this appeal.

{ ¶ 3} In Burley I, we summarized the facts giving rise to this case as follows:
This case involves an adult son allegedly punching a person in the face on the property of and in connection with businesses owned or operated by the aggressor’s father [Kelvin Burley].* * * * [The plaintiff] Basil Gibbs filed a lawsuit against Kelvin Burley’s son Ernest Burley, and also named as defendants Kelvin Burley; Burley Trucking, LLC; JAC Burley Trucking, LLC; and John Does 1 and 2. The complaint alleged that (son) Ernest Burley had punched Mr. Gibbs in the face while acting as an employee of trucking companies incorporated by (father) Kelvin Burley and/or Jacqueline Simmons Burley. “At all times relevant herein,” the complaint recited, “Defendants Ernest Burley and Kelvin Burley were active participants in the business operations of the defendants Burley Trucking and JAC Burley Trucking.” More specifically, the complaint alleged, “[o]n or about March 25, 2017, Ernest Burley * * * was the son of Kelvin Burley, the owner of Burley Trucking, LLC and a management employee of Burley Trucking, LLC, and JAC Burley Trucking, LLC, directing low level employees and advising the owners in day to day operation of the companies.” On that day, too, Mr. Gibbs “was a business invitee” of those companies.
*2 The complaint further alleges that on March 25, 2017, “Mr. Gibbs and Ernest [Burley] walked onto the trucking company properties [from across the street] and were talking briefly before Ernest suddenly and without provocation or warning struck Mr. Gibbs in the face and jaw with his fist in the form of a blow commonly known as a ‘sucker punch.’” “Immediately before the punch was thrown, Mr. Gibbs was looking at Kelvin Burley and talking to him, and the next thing Mr. Gibbs knew, Ernest delivered the sucker punch blow to his face and jaw.” The attack “left Mr. Gibbs * * * fearful of any follow up or successive attack by Ernest * * *. However, after the attack Ernest ran away.”
The complaint claims that “Kelvin Burley, Burley Trucking and JAC Burley Trucking[ ] and their ownership and management were negligent in the hiring and retention (continued employment) of Ernest Burley given his criminal record propensity for violence and history of perpetrating aggressive behavior toward others including co-workers and the public during work hours and on his free time.” Beyond this Count One claim for “Negligence,” the complaint adds overlapping claims for “Respondeat Superior” (Count Two), “Negligent Hiring, Training, and/or Supervision” (Count Three), and “Recklessness” (Count Four).
The trial court found that service of the complaint was completed on Kelvin Burley on July 9, 2018, but that he did not file an answer. The month after service, on August 23, 2018, Mr. Gibbs filed a motion for default judgment against all defendants except Ernest Burley, the one alleged to have thrown the punch. The trial court granted the default and referred the matter to a magistrate for a damages hearing, at which Kelvin Burley appeared and gave testimony (including the information that “Defendant Ernest Burley is incarcerated”); the magistrate awarded Mr. Gibbs $36,240 in damages against Kelvin Burley and the trucking companies together (including $11,240 in past and future medical expenses), and the trial court adopted the magistrate’s decision.
(Citations omitted.) Burley I at ¶ 1-6.

{ ¶ 4} In Burley I, Kelvin Burley appealed the trial court’s grant of summary judgment and we reversed and remanded, holding that the complaint did not allege sufficient facts to hold Kelvin Burley personally responsible for the tort committed by his son. In their motion for relief from judgment, the L.L.C.s argued that the rationale requiring relief to Kelvin Burley also applied to them. The L.L.C.s contended that the trial court failed to examine whether plaintiff’s complaint could withstand a challenge under Civ.R. 12(B)(6) prior to granting the default judgment, and argued that the plaintiff’s complaint not only failed to state a claim against Kelvin Burley, it failed to state claims against the L.L.C.s themselves.

{ ¶ 5} In reviewing the L.L.C.s’ motion, the trial court took guidance from our decision in Burley I and determined they were not entitled to Civ.R. 60(B) relief. The trial court observed:
[W]hile the Court of Appeals held that the Complaint did not allege the elements necessary to negligent hiring with regard to Kelvin Burley individually, they did not make any such holding regarding Defendants Burley Trucking LLC or JAC Burley Trucking, LLC. The Court further finds, as the Court of Appeals noted in regards to Kelvin Burley, that because Defendants Burley Trucking LLC and JAC Burley Trucking, LLC did not answer the Complaint, “they are deemed to have admitted under these Counts the details of the attack by Ernest as alleged, [including the allegation that Ernest was] ‘a management employee of Burley Trucking, LLC and JAC Burley Trucking, LLC, directing low level employees and advising the owners in day to day operation of the company’s [sic] * * *. ‘ “
*3 * * * *

The Court finds that when viewing the facts and inferences alleged in these paragraphs in favor of Plaintiff, Plaintiff has sufficiently alleged that Defendant Ernest Burley was incompetent, that Defendants Burley Trucking, LLC and JAC Burley Trucking, LLC knew of Defendant Ernest Burley’s incompetence, and that Defendants Burley Trucking, LLC and JAC Burley Trucking, LLC’s act of hiring and retaining Defendant Ernest Burley as an employee proximately caused Plaintiff’s injuries.
Therefore, based on the foregoing, the Court finds that when Plaintiff’s Complaint is reviewed under the Civ.R. 12(B)(6) standard, Plaintiff has stated a valid negligent hiring and retention claim upon which relief may be granted against Defendants Burley Trucking, LLC and JAC Burley Trucking, LLC. As such, the Court further finds that the previous default judgment against Defendants Burley Trucking, LLC and JAC Burley Trucking, LLC is valid, and accordingly hereby DENIES Defendants’ Second Motion for Relief from Judgment Pursuant to Civ.R. 60(B) Instanter.
(Citations omitted.) Decision and Entry at **5-7.

{ ¶ 6} For ease of review, the L.L.C.s’ assignments of error will be addressed together. As noted, this case comes to us on review of the denial of a motion for Civ.R. 60(B) relief, and we have frequently summarized the standards governing our review in such cases. See, e.g., Cunningham v. ODOT, 10th Dist. No. 08AP-330, 2008-Ohio-6911, ¶ 33-35. To prevail on a Civ.R. 60(B) motion, the movant must demonstrate that: (1) it has a meritorious defense or claim to present if relief is granted; (2) it is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order, or proceeding was entered or taken. See GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. A party who files a motion for relief from judgment under Civ.R. 60(B) is not automatically entitled to such relief, nor to a hearing on the motion. Cuervo v. Snell, 131 Ohio App.3d 560, 569 (10th Dist.1998). Instead, the movant bears the burden of demonstrating that it is entitled to a hearing on the motion. Id. To warrant a hearing, the movant must allege operative facts that, if true, would be sufficient to establish each of the elements of the GTE test, and if the movant fails to allege operative facts with respect to each of these elements, the court is not required to hold an evidentiary hearing. State ex rel. Richard v. Seidner, 78 Ohio St.3d 116, 117 (1997). A decision on a Civ.R. 60(B) motion is within the sound discretion of the trial court, and an appellate court will not reverse a trial court’s determination absent an abuse of discretion. See Moore v. Emmanuel Family Training Ctr., 18 Ohio St.3d 64, 66 (1985). An abuse of discretion connotes more than an error of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable. Cunningham at ¶ 34, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

*4 { ¶ 7} There is simply no basis upon which we can conclude that the trial court abused its discretion here. First and foremost, we must observe that the L.L.C.s made no appearance in the case until May 18, 2019, some three months after the default judgment was issued, which was itself some nine months after they were served with process and some seven months after the motion for default judgment was filed. On May 18, 2019, the L.L.C.s filed a joint motion for relief from judgment with defendant Kelvin Burley. At approximately the same time, Kelvin Burley filed the pro se appeal that gave rise to our decision in Burley I; when the pending Civ.R. 60(B) motion came to our attention, we stayed the Burley I appeal and remanded the case back to the trial court for a decision on the motion. Following an evidentiary hearing before a magistrate, on October 30, 2019 the trial court denied the joint motion for Civ.R. 60(B) relief, and we then reactivated Kelvin Burley’s appeal and issued our decision in Burley I on January 9, 2020.

{ ¶ 8} But crucially, the L.L.C.s did not appeal from either the February 26, 2019 default judgment against them, and they did not appeal from the October 30, 2019 denial of their motion for Civ.R. 60(B) relief. Instead, after our decision reversing the judgment against their codefendant, the L.L.C.s filed a second Civ.R. 60(B) motion of their own—the motion denied by the court we now review. Even if the L.L.C.s had presented a colorable argument that the trial court erred in its initial default judgment decision against them, by failing to appeal either that decision or the initial decision denying them Civ.R. 60(B) relief they have forfeited their challenge, and the trial court would have been within its discretion to deny them relief for that reason alone.

{ ¶ 9} But even on the merits of their argument, the L.L.C.s have wholly failed to establish that their motion should have been granted or that the trial court erred. As noted above, the trial court held that even “when Plaintiff’s Complaint is reviewed under the Civ.R. 12(B)(6) standard, Plaintiff has stated a valid negligent hiring and retention claim upon which relief may be granted against Defendants Burley Trucking, LLC and JAC Burley Trucking, LLC.” (Decision and Entry at *8.) In Saavedra v. Mikado Japanese Steak House & Sushi, 10th Dist. No. 14AP-757, 2015-Ohio-778, this court held that “[i]n order to establish a claim for negligent hiring or retention, the following elements must be demonstrated: (1) the existence of an employment relationship, (2) the employee’s incompetence, (3) the employer’s actual or constructive knowledge of such incompetence, (4) the employer’s act or omission causing plaintiff’s injuries, and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.” Id. at ¶ 6, citing Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 729 (10th Dist.1999), citing Evans v. Ohio State Univ., 112 Ohio App.3d 724, 739 (10th Dist.1996). In

its denial of the L.L.C.s second motion for Civ.R. 60(B) relief, the trial court carefully analyzed the plaintiff’s complaint, specifically addressed each element of the cause of action for negligent hiring/retention, tied its analysis to specific allegations of fact, concluded that each element had been pled and supported by sufficient facts in the complaint, and held that by failing to respond to the complaint that the L.L.C.s had admitted those facts. And our own review of the plaintiff’s complaint does not reveal that the plaintiff failed to allege the operative facts required to state such a claim under Saavedra. In short, the trial court’s denial of the motion was correct under Civ.R. 60(B) and Cunningham, 2008-Ohio-6911, since the L.L.C.s could not establish that they were entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5)—which is precisely what the court held. And given that the trial court’s decision was not erroneous at all, we cannot conclude that it was an abuse of that court’s discretion, as is required by Moore, 18 Ohio St.3d at 66.

*5 { ¶ 10} For all these reasons, the L.L.C.s’ two assigned errors are overruled, and the judgment of the trial court denying Civ.R. 60(B) relief is affirmed.

Judgment affirmed.

DORRIAN, P.J., and SADLER, J., concur.
All Citations
Slip Copy, 2021 WL 1819831, 2021-Ohio-1595