Napier v. United States of America, No. 1:2010cv00040 - Document 71 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION Denying Petitioner's 65 Motion For New Trial and Motion to Vacate Judgment, signed by Judge Oliver W. Wanger on 6/22/2011. ((1) Petitioners motion for new trial is DENIED as untimely. (2) Petitioners motion to vacate jud gment under Rule 60 is DENIED. (3) The United States request to set a hearing on their cross-motion for destruction of property is DENIED. The stay remains in place as to that motion. The United States shall submit a proposed form of order consistent with this memorandum decision withinfive (5) days of electronic service.) (Gaumnitz, R)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 DENNIS NAPIER, 8 Petitioner, 9 10 1:10-cv-00040 OWW GSA v. UNITED STATES OF AMERICA, 11 MEMORANDUM DECISION DENYING PETITIONER S MOTION FOR NEW TRIAL AND MOTION TO VACATE JUDGMENT (DOC. 65). Respondent. 12 I. INTRODUCTION/BACKGROUND 13 14 Before the court for decision is Petitioner Dennis 15 Napier s motion for new trial, or, in the alternative, 16 motion to vacate the judgment. 17 18 19 20 21 Doc. 65. On January 30, 2009, special agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives ( ATF ), with the assistance of officers from the Clovis Police Department, executed a federal search warrant at 22 petitioner s residence in Clovis, California. During the 23 search, agents located and seized ten (10) firearms. 1 24 1 25 26 27 28 The following firearms were seized: (1) Rohm, Model 57, .44 caliber, revolver, bearing serial number: LG5891; (2) Sturm, Ruger &Co., Inc., Model P85, 9mm, pistol, bearing serial number: 30051055; (3) Mossberg, Model 500, 12 gauge, shotgun, bearing serial number: K500339; (4) Winchester, Model 94, 30-30 caliber, rifle, bearing serial number L203728; (5) New England Firearms Co., Pardner Model, 12 gauge, shotgun, bearing serial number: ND259016; (6) Marlin, Model 60, .22 caliber rifle, bearing serial number:16394321; 1 1 The seized firearms were accepted into the ATF system on 2 February 2, 2009 and a notice was sent to movant on 3 February 23, 2009. 4 5 6 7 Petitioner filed a claim, which was received by ATF on March 25, 2009. Doc. 1, Ex. A. On June 26, 2009, petitioner filed a motion for return of property pursuant 8 to Federal Rule of Civil Procedure Rule 41(g). 9 On January 8, 2010, the Magistrate Judge filed Findings 10 and Recommendations recommending denial of Petitioner s 11 motion for return of property. 12 13 14 15 Doc. 13. Doc. 1. Petitioner filed objections on January 12, 2010, January 14, 2010, January 19, 2010 and February 22, 2010. Docs. 15, 20, 19 & 25. 16 On July 30, 2010, the United States filed a brief in 17 support of its request that the District Court adopt the 18 Findings and Recommendations. 19 an opposition on August 30, 2010. 20 2011, after a number of continuances and a hearing on 21 22 23 24 Doc. 41. Petitioner filed Doc. 43. On March 24, February 28, 2011, the district court denied the petitioner s motion for return of property by adopting the Magistrate Judge s Findings and Recommendations, but 25 26 27 28 (7) Russian Model 191/30, 7.62 x54R, rifle, bearing serial number 9130102189; (8) Savage, Model Stevens, .410 gauge, shotgun, bearing no serial number; (9) Browning Arms, Model Buckmark, .22 caliber, pistol, bearing serial number: 655NZ16161; and (10) Hi-Point, Model C9, 9mm, pistol, bearing serial number: P1426321. 2 1 stayed destruction of the property pending final 2 determination by the appellate court. 3 4 5 6 7 8 On May 23, 2011, Petitioner filed a Motion for New Trial[/] Motion to Vacate the Judgment. United States filed an opposition. 7, 2011. The Doc. 69, filed June 14, 2011. II. DISCUSSION A. 11 Rule 59 Motion Untimely. A motion for new trial is governed by Federal Rule of 12 13 Doc. 65. Doc. 68, filed June Petitioner filed a reply. 9 10 Doc. 64. Civil Procedure 59, which provides that [a] motion for 14 new trial must be filed no later than 28 days after entry 15 of judgment. 16 or amend a judgment brought under Rule 59(e) must 17 likewise be filed no later than 28 days after the entry 18 of judgment. 19 20 21 22 Fed. R. Civ. P. 59(b). A motion to alter Here, the Order adopting the Magistrate Judges Findings and Recommendations was entered March 24, 2011. Doc. 64. Plaintiffs motion for new trial, filed May 23, 2011, even if construed as a motion to 23 alter or amend judgment under Rule 59(e), is DENIED as 24 untimely. 25 26 27 28 B. Rule 60. Plaintiffs reply specifically invokes Rule 60, which provides, in pertinent part: 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave. (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. Rule 60(a), which provides for corrections of clerical mistakes, is inapplicable here, as Petitioner claims substantive errors in the final judgment. Rule 60(b) provides for reconsideration: only upon a showing of (1) mistake, surprise, or excusable neglect; 4 1 (2) newly discovered evidence; (3) fraud; (4) a void 2 judgment; (5) a satisfied or discharged judgment; or (6) 3 extraordinary circumstances which would justify 4 5 6 7 relief. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). Petitioner s motion could not plausibly be construed 8 to argue that the judgment is void or has been satisfied 9 or discharged. 10 surprise. 11 making objections at the February 28, 2011 because the 12 13 14 15 He does not claim mistake, or He does suggest that he was hindered in court was extremely busy, his hearing was delayed, he had not eaten for 20 hours, and he was suffering from stage fright. This is arguably an invocation of the excusable 16 neglect basis for relief. 17 satisfied the excusable neglect standard, Plaintiff fails 18 to identify arguments he would have raised at the hearing 19 in the absence of the above-alleged inconveniences. 20 21 22 23 24 Even if, arguendo, this Petitioner also argues that branding him a felon amounted to perpetration of fraud. As was explained in both the Findings and Recommendations and the oral statement of decision adopting the Findings and 25 Recommendations, even though Petitioner s 1993 felony 26 assault conviction was set aside and declared a 27 misdemeanor by the Fresno County Superior Court in 2003, 28 5 1 this was erroneous as the offense was a felony based on 2 the original sentence, and could not be reduced to a 3 misdemeanor. 4 5 6 Tr., at 11-12. See Doc. 13 at 3-4; Doc. 61, 2/28/11 Hg. It was not improper or fraud to consider Petitioner subject to a firearms restriction. The Federal Court implores Petitioner to seek review 7 8 of the state court orders fixing his prior conviction as 9 a felony. 10 purpose, Plaintiff has not done so. 11 has no jurisdiction to obtain or amend the state court 12 The District Court judgment. 13 Petitioner does not claim any additional 14 15 Despite numerous continuances for that extraordinary circumstances that would justify relief 16 from the judgment. 17 arguments rehash issues already raised, considered, and 18 ruled upon. 19 20 The vast majority of Plaintiffs Petitioner s motion for relief under Rule 60(b) is DENIED. 21 22 23 24 25 26 C. Request to Set Hearing Re Cross-Motion for Destruction of Property. The district court stayed the United States cross- motion for destruction of property pending the final determination by an appellate court of petitioner s 27 motion for return of property. Doc. 64 at 2. The United 28 States now argues that the time for appeal has passed and 6 1 2 3 4 5 6 7 requests a hearing on their cross-motion. In a civil case, a notice of appeal must normally be filed within 30 days after the judgment or order appealed from is entered. Fed. R. App. P. 4(a). The order denying Petitioner s motion for return of property was entered March 24, 2011. Doc. 64. However, 8 whether that order was entered for purposes of the 9 Appellate Rules is a different question. 10 4 provides that whenever Federal Rule of Civil Procedure 11 58(a) requires the judgment or order to be set forth in 12 13 14 15 Appellate Rule a separate document, the order is not considered entered until set forth on a separate document or 150 days have run from entry of the judgment or order in 16 the civil docket. 17 document for all orders disposing of motions, with the 18 exception of certain types of motions not relevant here. 19 As a rule of thumb, a separate document should not set 20 forth the court s reasoning or apply law to the facts. 21 22 23 24 Rule 58(a) requires a separate See Paddack v. Morris, 783 F.2d 844, 846 (9th Cir. 1986). Here, although the order is short, it offers an additional reason for adopting the Magistrate Judge s 25 findings not set forth in any previous document. 26 does not constitute a separate document. 27 the order was never entered for purposes of Appellate 28 7 This Accordingly, 1 Rule 4. 2 24, 2011 to file his notice of appeal with the Ninth 3 Circuit Court of Appeals. Petitioner has 180 days (150 plus 30) from March 4 III. CONCLUSION 5 6 For the reasons set forth above: 7 (1) 8 as untimely. 9 10 11 12 Petitioner s motion for new trial is DENIED (2) Petitioner s motion to vacate judgment under Rule 60 is DENIED. (3) The United States request to set a hearing 13 on their cross-motion for destruction of 14 property is DENIED. 15 as to that motion. The stay remains in place 16 The United States shall submit a proposed form of 17 order consistent with this memorandum decision within 18 five (5) days of electronic service. 19 20 21 22 SO ORDERED Dated: June 22, 2011 /s/ Oliver W. Wanger United States District Judge 23 24 25 26 27 28 8
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