-VCF McKinnon et al v. NDEX West, LLC, No. 2:2012cv00329 - Document 61 (D. Nev. 2012)
Court Description: ORDER denying 49 Motion to Vacate and for relief from a judgment. Denying 50 Motion to alter or amend judgment. Denying 53 Emergency Motion to report a crime. Signed by Judge James C. Mahan on 9/5/2012. (Copies have been distributed pursuant to the NEF - SLR)
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-VCF McKinnon et al v. NDEX West, LLC Doc. 61 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 THOMAS MCKINNON and GERI MCKINNON, 8 2:12-CV-329 JCM (VCF) 9 Plaintiffs, 10 11 v. 12 ONEWEST BANK, FSB, et al., 13 Defendants. 14 15 ORDER 16 Presently before the court is pro se plaintiffs Geri and Thomas McKinnon’s motion to vacate 17 and for relief from a judgment. (Doc. # 49). Defendants Onewest Bank, FSB et al. filed an 18 opposition. (Doc. # 55). Plaintiffs then filed a reply. (Doc. # 57). Also before the court is plaintiffs’ motion to alter or amend judgment. (Doc. # 50). 19 20 Defendants filed an opposition. (Doc. # 52). Plaintiffs then filed a reply. (Doc. # 54). Lastly, before the court is plaintiffs’ emergency motion to report a crime. (Doc. # 53). 21 22 Defendants filed an opposition. (Doc. # 56). Plaintiffs then filed a reply. (Doc. # 58). 23 I. Procedural History 24 On February 29, 2012, plaintiffs filed the instant case for wrongful foreclosure. (McKinnon, 25 et. al. v. NDEX West, LLC, case number 2:12-cv-329-JCM-VCF, Doc. # 1). This is the second 26 lawsuit between these same parties; it involves the same property and the same alleged wrongful 27 conduct. Compare McKinnon, et. al. v. IndyMac Bank F.S.B., et. al., case number 2:11-cv-607-KJD- 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 GWF and McKinnon, et. al. v. NDEX West, LLC, case number 2:12-cv-329-JCM-VCF. On January 2 23, 2012, United States District Court Judge Dawson entered an order dismissing plaintiffs’ first 3 lawsuit on the merits. (McKinnon, et. al. v. IndyMac Bank F.S.B., et. al., case number 2:11-cv-607- 4 KJD-GWF, Doc. #47). On June 19, 2012, this court dismissed the instant case pursuant to the 5 doctrine of claim preclusion. (Doc. # 43.) Plaintiffs filed two motions to obtain relief from the court’s order dismissing the action and 6 7 one motion to report a crime. The court will address each motion in turn. 8 II. 9 Motions A. Motion to Vacate (Doc. # 49) 1. 10 Legal Standard 11 A motion for relief from a judgment or order may be brought if movant can show: (1) 12 mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with 13 reasonable diligence could not have been discovered in time to move for a new trial; (3) fraud, 14 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment 15 has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed 16 or vacated; or applying it prospectively is no longer equitable; and (6) any other reason that justifies 17 relief. FED. R. CIV. P. 60(b), see also Backland v. Barnhart, 778 F.2d 1386, 1388 (1985). Relief 18 under exception six requires a finding of “extraordinary circumstances.” Id. (citing McConnell v. 19 MEBA Medical & Benefits Plan, 759 F.2d 1401, 1407 (9th Cir.1985)). “A motion for reconsideration 20 is not an avenue to re-litigate the same issues and arguments upon which the court already has 21 ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005); see Merozoite 22 v. Thorp, 52 F.3d 252, 255 (9th Cir. 1995). “A party cannot have relief under this rule merely 23 because he or she is unhappy with the judgment.” Khan v. Fasano, 194 F.Supp.2d 1134, 1136 (S.D. 24 Cal. 2001). 25 26 27 2. Analysis Plaintiffs specifically argue that the court’s order should be vacated under Federal Rule of Civil Procedure 60(b)(2), (3), (4), and (6). 28 James C. Mahan U.S. District Judge -2- 1 2 a. Newly discovered evidence In order to form a basis for relief from judgment, newly discovered evidence must, inter alia, 3 be likely to produce a different outcome. Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th 4 Cir.1990). 5 Plaintiffs’ complaint was dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). 6 When examining a complaint for failure to state a claim upon which relief can be granted, the court 7 looks only to the sufficiency of the complaint. Thus, the court takes all factual allegations as true and 8 does not consider evidence. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). 9 Further, plaintiffs’ claims were dismissed under the doctrine of claim preclusion. Claim 10 preclusion “bars litigation in a subsequent action of any claims that were raised or could have been 11 raised in the prior action.”Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 12 2001) (quoting Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)). 13 To the extent that plaintiffs argue that newly discovered evidence warrants relief from this 14 court’s judgment, evidence is neither relevant nor admissible for a motion to dismiss. Further, no 15 new material evidence would impact the court’s decision to dismiss the case under claim preclusion. 16 Thus, the court finds that relief on this basis is inappropriate. 17 b. Fraud 18 “To prevail, the moving party must prove by clear and convincing evidence that the verdict 19 was obtained through fraud, misrepresentation, or other misconduct and the conduct complained of 20 prevented the losing party from fully and fairly presenting the defense.” De Saracho v. Custom Food 21 Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). “Federal Rule of Civil Procedure 60(b)(3) 22 require[s] that fraud ... not be discoverable by due diligence before or during the proceedings.” Pac. 23 & Arctic Ry. and Navigation Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir.1991). 24 Plaintiffs have not met their burden of demonstrating by “clear and convincing evidence” that 25 defendants obtained dismissal of this action through “fraud, misrepresentation, or other misconduct 26 . . .” De Saracho, 206 F.3d at 880. The court dismissed this action on the basis of claim preclusion; 27 there is nothing on the docket that indicates that plaintiffs were not given an opportunity to present 28 James C. Mahan U.S. District Judge -3- 1 their case. If anything, plaintiffs were given numerous opportunities to make their case against 2 defendants. Thus, any allegation of fraud is unsubstantiated and does not warrant relief on this 3 ground. 4 c. 5 Void judgment “[A] void judgment is one so affected by a fundamental infirmity that the infirmity 6 may be raised even after the judgment becomes final.” U. Student Aid Funds, Inc. v. Espinosa, 7 130 S. Ct. 1367, 1377 (2010). Generally, a judgment is only void where the court lacked 8 jurisdiction. Id. 9 Plaintiffs do not argue that the court lacked jurisdiction. Instead, they argue that the judgment 10 is void because they were denied the opportunity to present evidence. The Federal Rules of Civil 11 Procedure give courts broad authority to dismiss complaints that fail to state a claim. See FED. R. 12 CIV. P. 12(b) and 8(a). Plaintiffs have not shown any fundamental infirmity that would cause the 13 judgment to be void. Accordingly, reconsideration on this basis is denied. d. 14 Any other reason that justifies relief 15 “In order to bring himself within the limited area of Rule 60(b)(6) a petitioner is required to 16 establish the existence of extraordinary circumstances which prevented or rendered him unable to 17 prosecute an appeal.” Martella v. Marine Cooks & Stewards Union, Seafarers Int'l Union of N. Am., 18 AFL–CIO, 448 F.2d 729, 730 (9th Cir.1971). 19 Plaintiffs have already had their chance to litigate their case and have not provided the court 20 with any reason to afford plaintiffs relief under Federal Rule of Civil Procedure 60(b)(6). As 21 discussed, this court dismissed this action under the doctrine of claim preclusion. Plaintiffs argue 22 that they were unable to present evidence; however, that is not relevant to the basis upon which this 23 court dismissed plaintiffs’ action. Plaintiff have not provided the court with any reason why the 24 doctrine of claim preclusion does not apply, thus there appears no reason for the court to afford relief 25 on this ground. 26 ... 27 ... 28 James C. Mahan U.S. District Judge -4- 1 B. Motion to Alter or Amend Judgment (Doc. # 50) 1. 2 Legal Standard 3 Under Federal Rule of Civil Procedure 59(e), a party may move to have the court amend its 4 judgment within twenty-eight days after entry of the judgment.“Since specific grounds for a motion 5 to amend or alter are not listed in the rule, the district court enjoys considerable discretion in granting 6 or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc) 7 (per curiam) (internal quotation marks omitted). But amending a judgment after its entry remains “an 8 extraordinary remedy which should be used sparingly.” Id. (internal quotation marks omitted). In 9 general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such 10 motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if 11 such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such 12 motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 13 intervening change in controlling law. Id. 2. 14 Analysis 15 While the court is not limited to the four situations articulated in McDowell; even in its broad 16 discretion, the court does not find that amending the judgment is appropriate under these 17 circumstances. In the June 19, 2012, order the court dismissed the action on the basis of claim 18 preclusion. Plaintiffs have not provided any sufficient basis upon which the court should revisit the 19 issue. The court’s order addressed the second lawsuit between the same parties, involving the same 20 property, and the same alleged wrongful conduct. There is no reason to believe that new material 21 evidence would impact the court’s determination of the applicability of claim preclusion. Thus the 22 court does not find that plaintiffs’ case warrants this “extraordinary remedy.” McDowell, 197 F.3d 23 at 1255 n. 1. 24 C. 25 Plaintiffs claim that the promissory note relating to their mortgage is a forgery and seek to 26 Emergency Motion to Report a Crime (Doc. # 53) report various crimes pursuant to federal statutes. 27 28 James C. Mahan U.S. District Judge -5- 1 This motion is not proper and the court will not entertain it. Crimes are to be reported to law 2 enforcement, not to courts. This motion appears to be designed to harass defendants and waste the 3 time of the court. Plaintiffs are warned that further improper motions of this type will result in the 4 court ordering plaintiffs to pay the costs and fees incurred by defendants in responding to such 5 motions. 6 III. Conclusion 7 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED the plaintiff’s motion to vacate 8 and for relief from a judgment (doc. # 49), plaintiffs’ motion to alter or amend judgment (doc. # 50), 9 and plaintiffs’ emergency motion to report a crime (doc. # 53) be, and the same hereby are, DENIED. 10 DATED September 5, 2012. 11 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-
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