Sherman v. Reisig et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 6/9/2011 ORDERING that plaintiff's 7 motion for relief from judgment is DENIED. (Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSEPH A. SHERMAN,
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Plaintiff,
No. 2:10-cv-02939 FCD KJN PS
v.
YOLO COUNTY FORMER DISTRICT
ATTORNEY DAVE HENDERSON;
DEPUTY D.A. ALVINA TZANG; and
YOLO COUNTY TRANSPORTATION
DISTRICT DIRECTOR TERRY
BASSETT,
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Defendants.
ORDER
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/
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Presently before the court is plaintiff’s “Motion for Relief From Judgment,” filed
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pursuant to Federal Rules of Civil Procedure 59(e) and 60(b)(6). The undersigned: (1) denies
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plaintiff’s Rule 59(e) motion because no judgment has yet been entered in this action; and
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(2) denies plaintiff’s Rule 60(b)(6) motion because “extraordinary circumstances” do not support
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the relief requested.
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Plaintiff, who is proceeding without counsel, filed his complaint and application
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to proceed in forma pauperis on November 1, 2010. On December 14, 2010, the undersigned
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entered an order granting plaintiff’s application to proceed in forma pauperis, but dismissing
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plaintiff’s complaint with leave to file a first amended complaint. (Order, Dec. 14, 2010, Dkt.
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No. 3.) On December 23, 2010, plaintiff filed objections to the court’s order, which the
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undersigned construed as a motion for reconsideration. (See Order, Jan. 11, 2011, Dkt. No. 5.)
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The undersigned overruled plaintiff’s objections. (Id.)
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Plaintiff filed a First Amended Complaint on January 20, 2011. (First Am.
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Compl., Dkt. No. 6.) On January 24, 2011, plaintiff filed the pending motion for relief from
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judgment. Plaintiff’s motion does not actually seek relief from a “judgment;” instead, plaintiff
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seeks relief from the orders entered in this action on December 14, 2010, and January 11, 2011.
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Plaintiff contends that he filed his motion, in part, pursuant to Federal Rule of
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Civil Procedure 59(e), which provides: “A motion to alter or amend a judgment must be filed no
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later than 28 days after the entry of the judgment.” Here, no judgment has been entered in this
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case and, therefore, there is no judgment to alter or amend. Accordingly, plaintiff’s request for
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relief pursuant to Rule 59(e) is denied.
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Plaintiff also filed his motion pursuant to Federal Rule of Civil Procedure 60(b),
which 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:
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(1) mistake, inadvertence, surprise, or excusable neglect;
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(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);
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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
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(4) the judgment is void;
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(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
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(6) any other reason that justifies relief.
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Plaintiff only relies on the “catch-all” provision of Rule 60(b)(6) in seeking relief from the
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court’s screening order and order overruling plaintiff’s objections to a prior order. The “other
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reason” clause of Rule 60(b)(6) permits courts to “vacate judgments whenever such action is
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appropriate to accomplish justice,” Klapprott v. United States, 335 U.S. 601, 614-15 (1949), and
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a party seeking relief under that rule must show “extraordinary circumstances” justifying
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reopening a case. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (stating that “our cases
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have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’
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justifying the reopening of a final judgment”); accord Lal v. California, 610 F.3d 518, 524 (9th
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Cir. 2010) (“We use Rule 60(b)(6) sparingly as an equitable remedy to prevent manifest
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injustice.”) (citation and quotation marks omitted); United States v. Washington, 593 F.3d 790,
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799-800 (9th Cir. 2010) (en banc) (stating that “reopening under Rule 60(b)(6) is permitted only
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on a showing of ‘extraordinary circumstances’”) (citation and quotation marks omitted).
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Here, plaintiff cites no equitable reasons or other extraordinary circumstances that
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justify relief from the court’s orders. Plaintiff’s only complaint is that the previously entered
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orders were, in plaintiff’s view, wrongly decided. This viewpoint is an insufficient basis to
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justify relief under Rule 60(b)(6) and, accordingly, plaintiff’s request for relief pursuant to Rule
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60(b)(6) is denied.
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For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s motion for
relief from judgment (Dkt. No. 7) is denied.
IT IS SO ORDERED.
DATED: June 9, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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