Susan S. E. Vonsclobohm v. County of Los Angeles et al, No. 2:2018cv04527 - Document 166 (C.D. Cal. 2019)
Court Description: ORDER DENYING MOTION TO SET ASIDE DISMISSAL AND DENYING MOTION FOR PRELIMINARY INJUNCTION by Judge John F. Walter: Plaintiff's Motion to Set Aside Dismissal 41 is denied, and Plaintiff's Motion for Preliminary Injunction 44 ] is denied. All other pending motions, applications, and requests are vacated. This action is closed, and no further filings shall be accepted without prior approval by the Court. (kh)
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Susan S. E. Vonsclobohm v. County of Los Angeles et al Doc. 166 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SUSAN S. E. VONSCLOBOHM, 12 Plaintiff, 13 v. 14 COUNTY OF LOS ANGELES, et al., Case No. 2:18-cv-0 4527 J FW (ADS) ORDER DENYING MOTION TO SET ASIDE DISMISSAL AND DENYING MOTION FOR PRELIMINARY INJ UNCTION Defendants. 15 16 17 18 I. IN TROD U CTION The above-captioned case is one of a num ber of cases filed by pro se plaintiff 19 Susan Vonsclobohm (“Plaintiff”) arising from acrim onious divorce and child custody 20 proceedings between Plaintiff and her ex-husband Brian Evans. Plaintiff asserts the 21 state court divorce and custody proceedings violated her civil rights under 42 U.S.C 22 § 1983 and requests the Court order the return of her children to her custody. After 23 failing to properly prosecute the case and repeated failures to com ply with court orders, 24 on J anuary 18, 20 19, this case was dism issed without prejudice and judgm ent was Dockets.Justia.com 1 entered. [Dkt. No. 40 ]. On March 4, 20 19, Plaintiff filed the at issue Motion to Set 2 Aside Dism issal, which is ready for decision. [Dkt. No. 41]. Having considered the 3 papers filed in support of and in opposition to the m otion and the Court’s records, 4 Plaintiff’s Motion to Set Aside Dism issal is denied for the reasons stated below. 5 II. PROCED U RAL BACKGROU N D On May 24, 20 18, Plaintiff filed this civil rights com plaint under 42 U.S.C. § 1983 6 7 (“Com plaint”) against her ex-husband, Brian Evans (“Evans”), the County of Los 8 Angeles, three social workers, Linda Flores, Nicole Levine, and Cathrine Woillard,1 and 9 two state court judges, the Honorable Mark J uhas (“J udge J uhas”) and the Honorable 10 Natalie Stone (“J udge Stone”) (collectively referred to as “Defendants”). [Dkt. No. 1]. 11 The Com plaint arises out of ongoing fam ily law proceedings in California state court 12 which resulted in custody of Plaintiff’s children being awarded to Evans. [Dkt. No. 1, 13 p. 6]. This is the third of six cases, four civil rights com plaints and two habeas petitions, 14 Plaintiff filed in this court since 20 14 related to this child custody dispute. Spell v. 15 Cunningham III, Case No. 2:14-cv-0 980 6 SJ O MRW (Dec. 23, 20 14); Spell v. County of 16 Los Angeles, Case No. 2:15-cv-0 7775 GW PJ W (Oct. 4, 20 15); 2 Spell v. Stone, 2:19-cv- 17 0 20 73 J GB J C (March 20 , 20 19); Spell v. Stone, 2:19-cv-0 5886 J GB J C (J ul. 9, 20 19); 18 Vonsclobohm v. County of Los Angeles, Case No. 2:18-cv-0 457 J FW ADS (May 24, 19 20 18); Spell v. County of Los Angeles, Case No. 2:19-cv-0 6652 FMO ADS (J ul. 31, 20 19). 20 21 1 Plaintiff 22 2 23 lists Catherine Woillard as a defendant twice. Plaintiff also opened a case on the sam e day as Case No. 2:15-cv-0 7775, which was closed by the court four days after Plaintiff opened it because Plaintiff failed to upload any docum ents, including a complaint. Spell v. County of Los Angeles, Case No. 2:15cv-0 7776. 24 2 Shortly after Plaintiff filed this Com plaint, three m otions to dism iss were filed by 1 2 the following defendants: J udge J uhas on J une 14, 20 18 [Dkt. No. 9], Albert Gibbs 3 (“Gibbs”) 3 on J uly 2, 20 18 [Dkt. No. 13], and Evans on J uly 30 , 20 19 [Dkt. No. 19]. 4 Despite requesting an extension of tim e to do so, Plaintiff failed to oppose these 5 m otions. Instead, on or around August 9, 20 18, Plaintiff, using the nam e Susan S. E. 6 Von Schlobohm , filed another civil rights com plaint nam ing additional defendants 7 (“Subsequent Com plaint”) without seeking leave of court to do so. 4 [Dkt. No. 22]. 8 Failu re to Re s p o n d to Au gu s t Ord e r Re qu irin g Clarificatio n 9 On August 10 , 20 18, the Court issued a Notice to Filer of Deficiencies that 10 notified Plaintiff that the Subsequent Com plaint contained the following errors: (1) leave 11 of court is required for filing; (2) it included m ore than ten Does or fictitiously nam ed 12 parties in violation of Local Rule 19-1; and (3) it lacked Plaintiff’s signature. [Dkt. 13 No. 23]. On August 16, 20 18, the Court issued an Order Requiring Clarification 14 (“August Order Requiring Clarification”) directing Plaintiff to explain whether she 15 wished to file a proposed am ended com plaint or proceed with the original Com plaint. 16 [Dkt. No. 24]. The Order also contained a second notice that the Subsequent Com plaint 17 contained the three errors listed in the Notice to Filer of Deficiencies. [Id., p. 2]. 18 Plaintiff was advised that if she elected to file a First Am ended Com plaint by no later 19 than August 30 , 20 18, she need not otherwise respond to the Order Requiring 20 21 22 23 24 3 Defendant Gibbs was not nam ed as a defendant in the original Com plaint but filed a Motion to Dism iss the Com plaint because he was served on J une 19, 20 18 with a copy of the sum m ons and Com plaint. [Dkt. No. 13, p. 2 n.1]. 4 Defendant Gibbs was one of the additional parties nam ed in the Subsequent Com plaint. [Dkt. No. 22, pp. 1, 3]. 3 1 Clarification. The Court expressly warned Plaintiff that failure to tim ely file a response 2 to the Order m ay result in a recom m endation to the District J udge that this action be 3 dism issed without prejudice for failure to prosecute and obey Court orders pursuant to 4 the Federal Rule of Civil Procedure 41(b). Plaintiff failed to respond to this Court’s 5 Order Requiring Clarification or file a First Am ended Com plaint. 6 Failu re to Co m p ly w ith Se p te m be r Ord e r to Sh o w Cau s e 7 On Septem ber 19, 20 18 the Court issued an Order to Show Cause Re Plaintiff’s 8 Failure to Respond to the Court’s Order Requiring Clarification (“Septem ber Order to 9 Show Cause”). [Dkt. No. 30 ]. Plaintiff was advised that she “m ay respond to this Order 10 to Show Cause by filing one of the following: (1) a First Am ended Com plaint nam ing all 11 defendants and all claim s, along with an explanation of why an am endm ent to the 12 original Com plaint is needed; or (2) a written response stating the desire to proceed 13 with the original Com plaint.” [Dkt. No. 30 , p. 2]. In this sam e Order to Show Cause, 14 Plaintiff was again expressly warned that failure to file one of these two responses by no 15 later than October 2, 20 18 m ay result in a recom m endation to the District J udge that 16 this action be dism issed without prejudice for failure to prosecute and obey Court orders 17 pursuant to Federal Rule of Civil Procedure 41(b). [Id., p. 3]. 18 On October 2, 20 18, Plaintiff filed a First Am ended Com plaint. [Dkt. No. 31]. 19 However, Plaintiff again failed to sign the First Am ended Com plaint. [Id., p. 56]. 20 Interestingly, Plaintiff did sign a First Request for Relief from Num ber of Does, which 21 she filed on October 3, 20 18, one day after she filed the unsigned First Am ended 22 Com plaint. [Dkt. No. 32, p. 8]. Plaintiff also failed to subm it any explanation of why an 23 am endm ent to the original Com plaint was needed or in any way oppose the m otions to 24 dism iss. See [Dkt. No. 31]. 4 1 Failu re to Re s p o n d to Octo be r Ord e r 2 On October 4, 20 18, the Court issued an Order Striking the First Am ended 3 Com plaint and Requiring Plaintiff to File a Signed First Am ended Com plaint By No 4 Later Than October 9, 20 18 (“October Order Striking”), striking the First Am ended 5 Com plaint pursuant to Federal Rule of Civil Procedure Rule 11(a) and Local Rule 11-1. 6 [Dkt. No. 34]. The Court expressly warned Plaintiff that failure to file a signed First 7 Am ended Com plaint by October 9, 20 18 would result in a recom m endation that this 8 action be dism issed. [Id.]. Again, Plaintiff failed to com ply with the Court’s order and 9 file a signed First Am ended Com plaint. 10 11 Failu re to Re s p o n d to D e ce m be r Ord e r to Sh o w Cau s e On December 6, 20 18, nearly two m onths after the deadline by which Plaintiff 12 was ordered to file a signed First Am ended Com plaint, the Court issued another Order 13 to Show Cause (“Decem ber Order to Show Cause”) directing Plaintiff to show cause, by 14 no later than Decem ber 20 , 20 18, why this action should not be dism issed for failure to 15 prosecute and obey the Court’s orders. This Order to Show Cause expressly warned 16 Plaintiff that failure to file a signed First Am ended Com plaint or written response 17 setting forth com pelling reasons why Plaintiff has failed to tim ely file a signed First 18 Am ended Com plaint would result in a recom m endation to the District J udge that this 19 case be dism issed pursuant to Federal Rule of Civil Procedure 41(b). [Dkt. No. 36, p. 3]. 20 Again, Plaintiff failed to respond to the Decem ber Order to Show Cause or to file a 21 signed First Am ended Com plaint. 22 23 24 Failu re to Obje ct to Re p o rt an d Re co m m e n d atio n On December 26, 20 18, the Court issued a Report and Recom m endation recom m ending that Plaintiff’s case be dism issed for failure to prosecute the case and 5 1 com ply with court orders pursuant to Federal Rule of Civil Procedure 41(b). [Dkt. 2 No. 38]. On the sam e day, the Court issued a Notice of Filing of Magistrate J udge’s 3 Report and Recom m endation, which instructed Plaintiff that any objections to the 4 Report and Recom m endation m ust be filed and served by J anuary 15, 20 19. [Dkt. 5 No. 37]. Plaintiff did not file any objections to the Report and Recom m endation. 6 On J anuary 18, 20 19, the Court issued an Order Accepting Report and 7 Recom m endation of United States Magistrate J udge and Dism issing Case [Dkt. No. 39] 8 and a J udgm ent [Dkt. No. 40 ] dism issing the case without prejudice for failure to 9 prosecute the case and com ply with court orders. Plaintiff did not file a m otion for 10 11 12 reconsideration or a notice of appeal. Mo tio n to Se t As id e D is m is s al an d fo r Pre lim in ary In ju n ctio n Forty-five days after the filing of the J udgm ent, on March 4, 20 19, Plaintiff filed 13 the at issue Motion to Set Aside Dism issal with a m em orandum in support 14 (“Mem orandum ”). [Dkt. Nos. 41, 41-1]. Shortly thereafter, on March 12, 20 19, prior to 15 obtaining an order setting aside the dism issal, Plaintiff filed a m otion for prelim inary 16 injunction titled, “Motion for Declaratory and Injunctive Relief and the Return of the 17 Plaintiff’s Four Biological Children” (hereafter referred to as “Motion for Prelim inary 18 Injunction”). [Dkt. No. 44]. On April 3, 20 19, defendant Evans filed an Opposition to 19 the Motion to Set Aside Dism issal (“Evans Opposition”). [Dkt. No. 50 ]. On the sam e 20 day, J udges J uhas and Stone filed an Opposition to Plaintiff’s Motion to Set Aside 21 J udgm ent and Motion for Declaratory Relief (“J uhas/ Stone Opposition”). [Dkt. No. 51]. 22 Plaintiff filed a “Reply Brief in Support of the Plaintiff’s Requst [sic] to be Heard; 23 Motion to Set Aside J udgm ent and Motion for Declaratory Relief” (“Reply”). [Dkt. 24 No. 56]. Plaintiff also filed two declarations. [Dkt. No. 41-2, 44-2]. 6 Since the filing of the Motion to Set Aside Dism issal, and prior to receiving an 1 2 order setting aside the judgm ent of dism issal, Plaintiff has filed som ething with the 3 Court virtually every day in this case. These filings include a m otion for prelim inary 4 injunction, fifteen requests for judicial notice, seventy-five exhibits, m ultiple 5 supplem ental briefs and ex parte applications, an am ended petition, and m ultiple 6 declarations, all related to the state court fam ily dispute. Plaintiff also filed a request for 7 default judgm ent in this closed case. [Dkt. No. 143]. Plaintiff’s two habeas petitions, 8 filed using the nam e Susan Spell and challenging a 20 16 juvenile dependency court 9 order, were sum m arily dism issed and Plaintiff’s m otions for reconsideration were 10 denied. Spell v. Stone, 2:19-cv-0 20 73 J GB J C (filed March 20 , 20 19); Spell v. Stone, 11 2:19-cv-0 5886 J GB J C (filed J ul. 9, 20 19). Also using the nam e Susan Spell, Plaintiff 12 filed another civil rights com plaint against social workers and state court judges related 13 to her child custody dispute. Spell v. County of Los Angeles, Case No. 2:19-cv-0 6652 14 FMO ADS (filed J ul. 31, 20 19). Yet another civil rights case was filed by Christopher 15 Von Schlobohm , who appears to be Plaintiff’s current husband, related to Plaintiff’s 16 child custody dispute. Von Schlobohm v. County of Los Angeles, Case No. 2:19-cv- 17 0 7358 DOC ADS (filed Aug. 23, 20 19). These actions are pending. 18 III. 19 20 AN ALYSIS A. Plain tiff’s Argu m e n ts in Su p p o rt o f Mo tio n In her Mem orandum , Plaintiff presents a chronological factual background, 21 beginning on May 23, 20 18, that focuses on the alleged conduct of defendants Evans 22 and J udge J uhas related to the underlying fam ily law proceedings before J udge J uhas. 23 [Dkt. No. 41-1, pp. 2-9]. Plaintiff m akes four argum ents why the Court should set aside 24 the dism issal of this case. First, Plaintiff argues the Court should set aside the dism issal 7 1 for harm less error under Federal Rule of Civil Procedure 61 (“Rule 61”) because 2 “Plaintiff refiled her civil rights com plaint with a signature, caption [sic] ‘First 3 Am ended,’ as requested.” [Dkt. No. 41-1, p. 9]. Plaintiff also argues that defendants 4 failed to notify her of a hearing or in-cham ber m eeting of J anuary 19, 20 19.5 [Id.]. Second, Plaintiff argues the Court should set aside the dism issal for excusable 5 6 neglect under Federal Rule of Civil Procedure 60 (“Rule 60 ”). [Id., p. 10 ]. Plaintiff 7 argues that from May 1, 20 18 through February 22, 20 19, “Professionals such as school 8 psychologist, pediatrician and drug rehabilitation doctors required full attention for 9 [Plaintiff’s child]’s suicide watches periodically.” [Id.]. Third, Plaintiff argues the Court should set aside the dism issal for “perjury, fraud, 10 11 fear of harm / duress/ coercion.” [Id., p. 12]. Plaintiff alleges she is under duress “from 12 her fear of Evans harm ” and J udge J uhas’ alleged coercion to deny Plaintiff “protection 13 from Evans crim es to her children.” [Id.]. Plaintiff also states she “suffers financial 14 duress and fear of Evans’ threats of contem pt, arrest and bench warrants from J uhas” 15 and she “is also under duress from defendants that will not do their governm ental duties 16 to recuse.” [Id.]. 17 Finally, Plaintiff argues the “federal court m ust grant this m otion to set aside the 18 dism issal 1-19-20 19 of her Plaintiff’s civil rights action brought under 42 U.S.C. § 1983, 19 suing the County and em ployees.” [Id.]. Plaintiff asks the Court, “federal court m ust 20 vacate orders 5-23-16, returning the Plaintiff’s three biological children.” [Dkt. No. 41-1, 21 p. 13]. Plaintiff asserts that “federal court is the only rem edy to correct this abuse of 22 23 24 5 The Court’s records do not reflect that a hearing or in-cham ber m eeting took place on or around J anuary 19, 20 19 in this case. 8 1 state power that violated the children/ Plaintiff’s fourth, sixth, and fourteenth 2 am endm ent constitutional rights.” [Id.]. In her Mem orandum , Plaintiff seeks the 3 following relief: (1) set aside the dism issal and “quashing service if alleged 1-19-19;” 4 (2) grant a hearing on “these m atters;” (3) vacate “erroneous findings/ orders from false 5 facts-juvenile dependency 5-11-16;” (4) grant an injunction or m andate returning 6 Plaintiff’s children with a protective order from Evans; (5) enforcing Plaintiff’s eldest 7 child’s “170 .6 rem oving J uhas from his DV and the Fam ily court case;” (6) “[r]em ove 8 J uhas/ Stone from this com plaint post Injunction to return children;” and (7) bar “in 9 cham ber m eetings or hearings without notice going forward.” [Id. p. 14]. 10 11 B. D e fe n d an t Evan s ’ Argu m e n ts In his Opposition, Evans argues the Motion to Set Aside Dism issal is “nothing 12 m ore than an attem pt to again re-litigate” the fam ily law action related to Plaintiff and 13 Evans’ m arriage dissolution and the Departm ent of Child and Fam ily Services’ order 14 rem oving the m inor children from Plaintiff’s care. [Dkt. No. 50 , p. 3]. Evans then 15 argues Plaintiff has failed to m eet her burden under any subsection of Rule 60 . [Id.]. 16 Regarding “m istake, inadvertence, surprise or excusable neglect,” Evans argues that 17 these “all boil down to excusable neglect; i.e., a showing of a reasonable excuse for the 18 default or entry of a judgm ent.” [Id., p. 4]. Evans cites to the various form s of duress 19 Plaintiff claim s she was under and argues that “the ‘duress’ Plaintiff was under has no 20 bearing on why she failed to sim ply sign her [Subsequent Com plaint] and does not 21 provide the basis for ‘m istake.’” [Id.]. Evans asserts Plaintiff’s neglect is not excusable 22 because Plaintiff “knew she filed this action, she was provided with nearly five m onths to 23 correct her various and repeated errors and further prosecute her case, and she sim ply 24 failed to do so.” [Id.]. Evans further notes that Plaintiff has failed to allege any newly 9 1 discovered evidence, fraud, m isrepresentation or other m isconduct that led to the filing 2 of the judgm ent in this case, or to assert that the judgm ent is void or should no longer 3 have prospective application, or any other reason to justify relief from the dism issal. 4 [Id., pp. 5-7]. 5 C. 6 Ju d ge Ju h as ’ an d Ju d ge Sto n e ’s Argu m e n ts In the J uhas/ Stone Opposition, J udges J uhas and Stone argue Plaintiff has failed 7 to establish sufficient grounds to support an order setting aside the dism issal under 8 Rule 60 . [Dkt. No. 51, p. 4]. Specifically, J udges J uhas and Stone argue that Plaintiff’s 9 grounds do not establish m istake, surprise, or excusable neglect, and that Plaintiff’s 10 conclusory allegations regarding fraud are legal conclusions that the Court need not 11 accept as true under Ashcroft v. Iqbal, 556 U.S. 662, 679 (20 0 9), and Bureerong v. 12 Uvawas, 922 F. Supp. 1450 , 1462 (C.D. Cal. 1996). [Id., p. 4]. They argue this case is 13 barred against them by absolute judicial imm unity and generally by Younger 14 Abstention. [Id., pp. 6-9]. J udges J uhas and Stone also argue, “Plaintiff’s reliance on 15 Rule 61 is m isplaced as that Rule governs the erroneous adm ission or exclusion of 16 evidence, and no evidence has been adm itted or excluded in this action.” [Id., p. 2]. 17 J udges J uhas and Stone assert Plaintiff’s Motion for Prelim inary Injunction is without 18 m erit and procedurally im proper because, at a m inim um , there is no case pending to 19 support an issuance of a prelim inary injunction. [Dkt. No. 51, p. 4]. 20 21 D. Plain tiff’s Argu m e n ts in Re p ly In her Reply, Plaintiff argues the Younger Abstention doctrine, res judicata and 22 collateral estoppel do not bar her Motion for Prelim inary Injunction. [Dkt. No. 56, 23 pp. 1-8]. Plaintiff also argues she has sufficiently established grounds for setting aside 24 the dism issal. [Id., pp. 8-18]. Plaintiff again re-alleges her assertions relating to the 10 1 state court proceedings from the Com plaint, identifies conduct in the state court 2 proceedings she believed was fraudulent, and asserts that J udge Stone lacked 3 jurisdiction to issue her orders. [Id., pp. 8-9]. Plaintiff m akes various allegations that 4 she asserts support setting aside the dism issal, all of which pertain to the state court 5 proceedings. These include the following contentions: (1) J udge J uhas “m isrepresents 6 his in cham ber order com bining [Plaintiff’s eldest child’s] [dom estic violence restraining 7 order], refusing his duty to recuse;” (2) J udge J uhas issued orders outside of his 8 jurisdiction in violation of Plaintiff’s rights and aided Evans’ abuse of the m inor 9 children; (3) Plaintiff has shown that her civil rights lawsuit is m eritorious; (4) that 10 “evidence of due process violations dem onstrate Plaintiff’s right to be heard;” and 11 (5) “subdivision (6) relief has been granted when an innocent third party was harm ed by 12 the default judgm ent.” [Id., p. 13]. Plaintiff then appears to assert that she has 13 presented evidence to support an “order for an attorney.”6 [Id., p. 17]. Finally, Plaintiff 14 argues that she should be granted leniency because of her pro se status and because 15 courts liberally apply the rules regarding setting aside default judgm ents. [Id., 16 pp. 16-18]. E. 17 18 Stan d ard o f Re vie w U n d e r Ru le 6 0 A party m ay seek reconsideration on an order or judgm ent by filing a m otion for 19 relief from judgm ent under Rule 60 (b) of the Federal Rules of Civil Procedure (“FRCP”). 20 Reconsideration m ay be based on (1) m istake, inadvertence, surprise, or excusable 21 22 23 6 On J uly 25, 20 18, this Court denied Plaintiff’s request for appointm ent of counsel. [Dkt. Nos. 16 and 18]. Plaintiff has not filed a subsequent request for appointm ent of counsel and no such m otion is pending before the Court. 24 11 1 neglect; (2) newly discovered evidence; 7 (3) fraud, m isrepresentation, or m isconduct by 2 an opposing party; (4) the judgm ent being void; (5) the judgm ent having been satisfied, 3 based on a reversed or vacated earlier judgm ent, or where applying it prospectively 4 would no longer be equitable; or (6) any other reason justifying relief.8 Fed. R. Civ. 5 P. 60 (b). Rule 60 (b) should be liberally construed. See Ahanchian v. Xenon Pictures, 6 Inc., 624 F.3d 1253, 1258-59 (9th Cir. 20 10 ). Before reaching the m erits of Plaintiff’s 7 Motion to Set Aside Dism issal, the Court considers the tim eliness of Plaintiff’s m otion. F. 8 9 Tim e lin e s s U n d e r Ru le 6 0 ( c) ( 1) A Rule 60 (b)(1) m otion “m ust be m ade within a reasonable tim e,” and “no m ore 10 than a year after entry of the judgm ent or order.” Fed. R. Civ. P. 60 (c)(1). However, a 11 court m ay deny a m otion, even if it was filed within the one-year period, if the m oving 12 party “was guilty of laches or unreasonable delay.” Meadows v. Dom inican Republic, 817 13 14 15 16 17 18 19 20 21 22 23 24 7 As noted above, Plaintiff also m akes vague references to “new evidence” that arose at various points in the underlying state court actions. [Dkt. No. 41-12, pp. 8 (discussing evidence presented to J udge J uhas in 20 19), 13-14 (discussing evidence presented to state, appellate, and suprem e courts)]. However, Plaintiff provides no evidence that this inform ation was unknown to her at the tim e of the judgm ent. See Fed. R. Civ. P. 60 (b)(2) (“newly discovered evidence that, with reasonable diligence, could not have been discovered in tim e to m ove for a new trial”). Further, the alleged “new evidence” is unrelated to the grounds on which Plaintiff’s case was dism issed. As such, the Court does not address Rule 60 (b)(2). 8 Plaintiff cannot rely on both Rule 60 (b)(1) and Rule 60 (b)(6) as these provisions are m utually exclusive. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 50 7 U.S. 380 , 393 (1993); see also Cm ty. Dental Servs. v. Tani, 282 F.3d 1164, 1170 (9th Cir. 20 0 2) (“The ‘excusable neglect’ clause is interpreted as encom passing errors m ade due to the ‘m ere neglect’ of the petitioner whereas (b)(6) is intended to encom pass errors or actions beyond the petitioner’s control.”) (citing Pioneer, 50 7 U.S. at 394). Plaintiff explicitly discussed “excusable neglect” in her Mem orandum in support of her Motion to set Aside J udgm ent, but only briefly m entions Rule 60 (b)(6) in her Reply. Com pare [Dkt. No. 41-1, p. 10 ] with [Dkt. No. 56, p. 15]. As such, the Court understands Plaintiff’s m otion to be brought pursuant to Rule 60 (b)(1) and does not conduct an analysis under Rule 60 (b)(6). 12 1 F.2d 517, 520 -21 (9th Cir. 1987); Hidais v. Porter, 20 10 U.S. Dist. LEXIS 24810 , 20 10 2 WL 760 561, at *1 (N.D. Cal. March 4, 20 10 ). What constitutes “‘reasonable tim e’ 3 depends upon the facts of each case,” and courts should take into consideration (1) “the 4 interest in finality;” (2) “the reason for delay;” (3) “the practical ability of the litigant to 5 learn earlier of the grounds relied upon;” and (4) “prejudice to the other parties.” 6 Lem oge v. United States, 587 F.3d 1188, 1196 (9th Cir. 20 0 9) (quoting Ashford v. 7 Steuart, 657 F.2d 10 53, 10 55 (9th Cir. 1981) (per curiam)). 8 9 1. In te re s t in Fin ality o f Ju d gm e n t “Rule 60 (b)(1) guides the balance between the overriding judicial goal of deciding 10 cases correctly, on the basis of their legal and factual m erits, with the interest of both 11 litigants and the courts in the finality of judgm ents.” TCI Group Life Ins. v. 12 Knoebber, 244 F.3d 691, 695 (9th Cir. 20 0 1) (quoting Pena v. Seguros La Com ercial, 770 13 F.2d 811, 814 (9th Cir. 1985)), overruled on other grounds, Egelhoff v. Egelhoff ex rel. 14 Breiner, 532 U.S. 141 (20 0 1). “[E]ven though FRCP 60 (b) m otions are liberally 15 construed, ‘there is a com pelling interest in the finality of judgm ents which should not 16 lightly be disregarded.’” In re William s, 28 7 B.R. 787, 793 (9th Cir. BAP 20 0 2) (quoting 17 Pena v. Seguros La Com ercial, 770 F.2d 811, 814 (9th Cir. 1985)). Accordingly, where 18 “the tim e for filing an appeal to the underlying judgm ent has expired, the interest in the 19 finality of judgm ents is to be given great weight in determ ining whether a FRCP 60 (b)(1) 20 m otion is filed within a ‘reasonable tim e.’” In re William s, 287 B.R. at 793 (citing 21 Ashford, 657 F.2d at 10 55). 22 However, “where there has been no m erits decision, appropriate exercise of 23 district court discretion under Rule 60 (b) requires that the finality interest should give 24 way fairly readily, to further the com peting interest in reaching the m erits of a dispute.” 13 1 TCI Grp., 244 F.3d at 696. The m oving party still bears the “burden of dem onstrating 2 that, in a particular case, the interest in deciding the case on the m erits should prevail 3 over the very im portant interest in the finality of judgm ents.” Id. 4 Here, the Order Accepting Magistrate J udge’s Report and Recom m endation and 5 Dism issing case and the J udgm ent were entered on J anuary 18, 20 19. [Dkt. 6 Nos. 39, 40 ]. Plaintiff did not file a notice of appeal as to the J udgm ent within the 30 - 7 day period required by Federal Rule of Appellate Procedure 4(a)(1)(A). Fed. R. App. 8 P. 4(a)(1)(A). Plaintiff also did not file any objections within the period perm itted for 9 objections to a Magistrate J udge’s Report and Recom m endation, nor did Plaintiff file a 10 Motion to Alter or Am end the J udgm ent within the period perm itted under Federal 11 Rule of Civil Procedure 59(e). 12 Although Plaintiff has presented extensive argum ents attem pting to show that 13 the underlying case would be successful on the m erits, she does not present any 14 argum ents as to why “the interest in deciding the case on the m erits should prevail over 15 the very im portant interest in the finality of judgm ents.” TCI Grp., 244 F.3d at 696. 16 Plaintiff has therefore failed to m eet her burden under this factor. The Court therefore 17 finds that the interest in finality of the judgm ent weighs in favor of finding Plaintiff’s 18 m otion untim ely. In re William s, 287 B.R. at 793. 19 2. Re as o n fo r D e lay an d Plain tiff’s Ability to Le arn o f th e Gro u n d s Re lie d U p o n Earlie r 20 21 As to the reason for delay, Plaintiff argues her attention was elsewhere due to her 22 eldest child’s m ental health treatm ent and the illnesses and deaths of her two siblings. 23 [Dkt. No. 41-1, p. 10 ]. Plaintiff does not explain how these events precluded her from 24 responding to the Court’s orders or prosecuting the case. Plaintiff does not provide 14 1 factual details to support her assertion that her attention was needed elsewhere.9 See 2 [Dkt. No. 41-1, pp. 7, 11]. Plaintiff also does not provide supporting evidence. Plaintiff’s 3 declarations in support of her Motion to Set Aside Dism issal and Motion for Prelim inary 4 Injunction are unsigned and, therefore, not com petent or reliable evidence. [Dkt. 5 Nos. 41-2, 44-2]; see 28 U.S.C. § 1746 (unsworn declaration m ust be signed “as true 6 under penalty of perjury”); United States v. Goodwin, 395 F. App’x 491, 493 (9th Cir. 7 20 10 ) (unsigned declaration not evidence). Although the Court is sym pathetic to the 8 potentially traum atic nature of these events, Plaintiff has provided insufficient detail 9 and no evidence to support her assertions. 10 Further, since before the case was filed, Plaintiff has been aware of the 11 circum stances she asserts were interfering with her ability to tim ely respond to Court 12 orders. The record reflects that this civil rights case was filed by Plaintiff while she was 13 engaged in her child’s m ental health treatm ent. Com pare [Dkt. No. 41-1, p. 10 (asserting 14 Plaintiff’s attention was needed from May 1, 20 18 through February 22, 20 19)] with 15 [Dkt. No. 1 (filing of Com plaint on May 24, 20 18)]. Therefore, the burden did not 16 foreclose the preparation and filing of the com plaint. Moreover, the docket reflects that 17 Plaintiff has never filed a request for extension of tim e to respond to any of the Court’s 18 orders.10 Even if Plaintiff were unable to devote the tim e to drafting a substantive 19 20 21 22 23 24 9 Plaintiff provides som e vague assertions, such as that in October 20 18 “Dr. G. Sm ith, drug rehabilitation specialist, Dr. Rousseau therapist and M. Peterson, from N.’s high school, with Mr. J ared, his probation officers worked with N. and the Plaintiff to help prevent N.’s depression and suicidal ideations” and that on J anuary 1, 20 19 “Plaintiff’s older brother’s health conditioned worsened leading to his death.” [Dkt. No. 41-1, p. 7]. 10 Plaintiff requested and was granted an extension of tim e in J uly 20 18, [Dkt. Nos. 16, 18], indicating that Plaintiff was aware she could request additional tim e to com ply with the Court’s orders. 15 1 argum ent, Plaintiff has provided no reason for her failure to com m unicate with the 2 Court in any way for five m onths. 3 Sim ilarly, to the extent Plaintiff alleges fraud, Plaintiff was aware of all of the 4 com plained-of conduct at the tim e she filed her Com plaint. Com pare [Dkt. No. 41-1, 5 p. 3, 8, 11, 12 (identifying fraud at various stages in the state court proceedings)]; with 6 [Dkt. No. 1, p. 6 (identifying defendants’ fraud in awarding child custody to Evans as a 7 fact underlying the Com plaint)]. 8 On May 24, 20 18, Plaintiff filed an Application for Perm ission for Electronic 9 Filing (“Application”) affirm ing that she understood that once she registered for e-filing, 10 she would receive notices and docum ents only by em ail and that she had daily access to 11 an em ail account to receive such notices. [Dkt. No. 4]. Plaintiff’s Application was 12 approved. [Dkt. No. 6]. As such, Plaintiff was served by em ail with the August Order 13 Requiring Clarification, Septem ber Order to Show Cause, October Order Striking, 14 Decem ber Order to Show Cause, Report and Recom m endation, Notice of Filing of 15 Magistrate J udge’s Report and Recom m endation, and J anuary Order and J udgm ent. 16 These orders provided Plaintiff with repeated notice of the fact that her case m ay be 17 dism issed for failure to prosecute and failure to com ply with court orders. [Dkt. 18 Nos. 24, 30 , 34, 36, 38]. Plaintiff has not argued or provided any evidence that she did 19 not receive these orders. Nor has Plaintiff presented any argum ents or evidence 20 showing that she was unable to request an extension of tim e to respond to any of these 21 orders. As such, Plaintiff has provided no evidence that anything “im peded [her] 22 awareness of the court’s ruling and all of the relevant facts and law.” See Ashford, 657 23 F.2d at 10 55. Thus, the second and third factors weigh in favor of finding Plaintiff’s 24 m otion untim ely. 16 1 2 3. Pre ju d ice to D e fe n d an t “To be prejudicial, the setting aside of a judgm ent m ust result in greater harm than 3 sim ply delaying resolution of the case.” TCI Group Life Ins. Plan v. Knoebber, 244 4 F.3d 691, 70 1 (9th Cir. 20 0 1), overruled on other grounds, Egelhoff v. Egelhoff ex rel. 5 Breiner, 532 U.S. 141 (20 0 1). The standard for whether a party is prejudiced is whether 6 the party will be able to pursue his defense, for exam ple because of loss of evidence, 7 increased difficulties of discovery, or greater opportunity for fraud or collusion. See TCI 8 Grp., 244 F.3d at 70 1 (quoting Thom pson v. Am . Hom e Assurance, 95 F.3d 429, 433-34 9 (6th Cir. 1996)). 10 Neither Plaintiff nor Defendants have provided arguments or evidence regarding 11 whether granting the Motion to Set Aside Dism issal would be prejudicial to the 12 Defendants. However, Plaintiff and her eldest child have filed a second action in the 13 Central District of California alleging m any of the sam e claim s against m any of the sam e 14 defendants, including J udges J uhas and Stone. See Spell, et al. v. County of Los 15 Angeles, et al., No. 2:19-0 6652 FMO (ADS). As such, granting Plaintiff’s Motion to Set 16 Aside Dism issal would subject J udges J uhas and Stone to duplicative litigation. 17 However, there is no indication that perm itting this case to proceed would interfere with 18 these defendants’ ability to raise the issue of duplicative litigation in either proceeding. 19 As such, the final factor weighs in favor of granting Plaintiff’s Motion to Set Aside 20 Dism issal. Overall, based on the totality of the circum stances alleged in Plaintiff’s 21 Motion to Set Aside Dism issal and the entire record, and after applying the Ashford 22 factors, the Court finds Plaintiff’s Motion to Set Aside Dism issal was not m ade within a 23 “reasonable tim e,” as required by Rule 60 (c)(1), and denies the Motion to Set Aside 24 Dism issal as untim ely. 17 1 2 G. Excu s able N e gle ct an d Frau d U n d e r Ru le 6 0 Because the Court has found Plaintiff’s m otion under Rule 60 to be untim ely, it 3 does not need to conduct a substantive evaluation of Plaintiff’s argum ents. However, 4 even if the Motion to Set Aside Dism issal were tim ely, Plaintiff has failed to show that 5 she should be relived from the effect of the judgm ent under either Rule 60 (b)(3) 6 or 60 (b)(1). The only grounds Plaintiff relies on in her briefing for the m otion are 7 excusable neglect and fraud. [Dkt. No. 41-1, pp. 10 , 12]. “To prevail [on a Rule 60 (b)(3) 8 m otion], the m oving party m ust prove by clear and convincing evidence that the verdict 9 was obtained through fraud, m isrepresentation, or other m isconduct and the conduct 10 com plained of prevented the losing party from fully and fairly presenting the defense.”). 11 See De Saracho v. Custom Food Machinery, Inc., 20 6 F.3d 874, 880 (9th Cir.). 12 Plaintiff has presented no evidence that fraud caused her failure to com ply with 13 Court orders or prosecute this case. The fraud Plaintiff com plains of relates to the 14 underlying state court proceedings. [Dkt. No. 41-1, p. 3, 8, 11, 12]; see also [Dkt. No. 1, 15 p. 6 (identifying defendants’ fraud in awarding child custody to Evans as a fact 16 underlying the Com plaint)]. Therefore, Plaintiff has not shown fraud resulted in the 17 judgm ent or that the conduct com plained of prevented Plaintiff from “fully and fairly” 18 presenting her case. See De Saracho v. Custom Food Machinery, Inc., 20 6 F.3d 874, 19 880 (9th Cir.). As such, Plaintiff has failed to m ake the necessary showing for 20 Rule 60 (b)(3) relief. 21 Rule 60 (b)(1) perm its relief when the party’s conduct is partly to blam e for the 22 delay, but the neglect is “excusable.” Pion eer Inv. Servs. v. Brunswick Assocs. Ltd. 23 P’ship, 50 7 U.S. 380 , 393 (1993). To determ ine whether neglect is excusable, courts 24 apply a “four-factor equitable test” and m ust consider “(1) the danger of prejudice to the 18 1 opposing party; (2) the length of the delay and its potential im pact on the proceedings; 2 (3) the reason for the delay; and (4) whether the m ovant acted in good faith.” 3 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 20 10 ) (citing 4 Pioneer, 50 7 U.S. at 395). 5 1. 6 D an ge r o f Pre ju d ice The danger of prejudice weighs in favor of setting aside the judgm ent. “Prejudice 7 requires greater harm than sim ply that relief would delay resolution of the case.” 8 Lem onge v. United States, 587 F.3d 1188, 1196 (9th Cir. 20 0 9) (citing TCI Group Life 9 Ins. Plan v. Knoebber, 244 F.3d 691, 70 1 (9th Cir. 20 0 1)). Under the Pioneer factors, 10 prejudice m ust be considered in relation to the prejudice a plaintiff would suffer if the 11 case were dism issed. Lem onge, 587 F.3d at 1196. 12 The Court has already found that there is no evidence Defendants would be 13 prejudiced by granting the Motion to Set Aside Dism issal. Again, Defendants presented 14 no argum ents on this issue. See [Dkt. Nos. 50 , 51]. That Defendants m ay have to 15 defend the case on the m erits does not constitute prejudice under Rule 60 (b)(1). See 16 Batem an v. U.S. Postal Serv., 231 F.3d 1220 , 1225 (9th Cir. 20 0 0 ) (finding insufficient 17 prejudice where defendants m erely “would have lost a quick victory”). 18 Plaintiff has also not presented argum ents or evidence showing that she would be 19 prejudiced if the Court denies her Motion to Set Aside Dism issal. The dism issal was 20 without prejudice and, as the Court has noted, Plaintiff has already brought a second 21 suit alleging sim ilar claim s against m any of the sam e defendants. See Spell, et al. v. 22 County of Los Angeles, et al., No. 2:19-0 6652 FMO (ADS). Plaintiff has not indicated 23 that she faces any statute of lim itations that would bar her from pursuing these claim s in 24 her new suit. Because neither party has presented evidence of any prejudice they would 19 1 suffer, the Court finds this factor does not weigh heavily in favor of either granting or 2 denying the Motion to Set Aside Dism issal. 3 4 2. Le n gth o f th e D e lay an d Po te n tial Im p act o n Pro ce e d in gs Plaintiff’s repeated failures to follow this Court’s rules and orders and to tim ely 5 respond weighs in favor of denying Plaintiff’s Motion to Set Aside Dism issal. From 6 August 10 , 20 19 through the filing of this Motion to Set Aside Dism issal on 7 March 4, 20 19, Plaintiff failed to adequately respond to any of the Court’s orders. 8 Between October 3, 20 18 and March 4, 20 19, Plaintiff did not com m unicate with the 9 Court in any way regarding her case. Instead of addressing two of the three m otions to 10 dism iss, Plaintiff has caused considerable delay in reaching the m erits of her case. 11 Plaintiff’s forty-five-day delay in filing the Motion to Set Aside J udgm ent, particularly 12 when com bined with the prior three-m onth failure to respond, is a considerable delay. 13 See Bosley v. Velasco, 20 16 U.S. Dist. LEXIS 170 961, 20 16 WL 8731195, at *3 (E.D. Cal. 14 Decem ber 9, 20 16) (finding “considerable” length of delay due to plaintiff’s failure to 15 prosecute weighed in favor of denial where plaintiff’s alleged delay spanned two 16 m onths); see also Top Lighting Corp. v. Linco Inc., 20 19 U.S. Dist. LEXIS 39981, 20 19 17 WL 10 91333, at *3 (C.D. Cal. Feb. 5, 20 19) (finding twenty-four-day delay between 18 default judgm ent and Rule 60 (b)(1) m otion was reasonable); Rains v. Allstate Ins. 19 Co., 20 18 U.S. Dist. LEXIS 137454, 20 18 WL 3830 177, at *2 (C.D. Cal. March 26, 20 18) 20 (finding twenty-four-day delay between judgm ent and Rule 60 (b)(1) m otion was not 21 substantial). As such, these factors weigh toward denying relief. 22 23 24 3. Re as o n fo r D e lay an d W h e th e r Mo van t Acte d in Go o d Faith The reason for the delay factor weighs in favor of denying the Motion to Set Aside J udgm ent. While Plaintiff has not clearly acted in good faith, the Court declines to 20 1 decide that she has acted in bad faith. The court has already found that Plaintiff has 2 failed to provide evidence of any reason that would justify the delay in failing to respond 3 to m ultiple court orders. In considering the final Pioneer factors, defendants have not 4 contended and the record at present is insufficient to show that Plaintiff acted in bad 5 faith. In determ ining whether a party acts in bad faith, courts consider whether the 6 error was due to negligence and carelessness rather than deviousness or willfulness. See 7 Batem an v. United States Postal Serv., 231 F.3d 1220 , 1225 (9th Cir. 20 0 0 ). 8 9 Plaintiff’s conduct raises serious doubts that she has been acting out of m ere “negligence” rather than “willfulness.” As discussed above, Plaintiff failed to 10 com m unicate with the Court in any way for five m onths. This extended delay, 11 particularly when viewed together with Plaintiff’s failure to fully com ply with prior 12 Court orders, indicates m ore than m ere “negligence,” but rather a willful disrespect for 13 this Court’s orders and local rules. Plaintiff argues that her attention was needed 14 “periodically” for her son’s m ental health treatm ent and her siblings’ deaths, but does 15 not explain why she was unable to com ply with the Court’s orders. 16 Plaintiff also continues to file unsigned docum ents and has m ade at least one 17 statem ent that is directly contradicted by the record. After twice being given notice that 18 she m ust file a signed First Am ended Com plaint, Plaintiff filed an unsigned First 19 Am ended Com plaint. [Dkt. No. 31]. Further, even after Plaintiff’s case was dism issed 20 for failure to prosecute her case and com ply with Court orders instructing her to sign 21 her filings, Plaintiff continued to file unsigned docum ents. Both of the “declarations” 22 Plaintiff attached to the briefing for the Motion to Set Aside J udgment and Motion for 23 Prelim inary Injunction are unsigned. [Dkt. Nos. 41, 41-1, 41-2, 44-1, 44-2, 56]. Plaintiff 24 asserts that she has filed a signed First Am ended Com plaint. [Dkt. No. 41-1, p. 9]. This 21 1 2 statem ent is irreconcilable with the record. See [Dkt. No. 31, p. 56 (lacking signature)]. Plaintiff also argues that she should be granted leniency because of her pro se 3 status. [Dkt. No. 56, pp. 16-18]. However, Plaintiff’s case was dism issed for her failure 4 to prosecute and to com ply with Court orders that sim ply required Plaintiff to sign her 5 First Am ended Com plaint. [Dkt. Nos. 24, 30 , 34, 36]. These were not legally com plex 6 orders. Overall, the four-factor test for excusable neglect weighs toward finding that 7 Plaintiff’s neglect was not excusable. As such, were the Court to evaluate Plaintiff’s 8 m otion on the m erits, the Motion to Set Aside Dism issal would be denied under 9 Rule 60 (b). 10 H. H arm le s s Erro r Ru le 11 Plaintiff’s Motion to Set Aside J udgm ent, to the extent she relies on Rule 61, the 12 Harm less Error rule, is without m erit. Under the “Harm less Error” rule, “[u]nless 13 justice so requires, no error in adm itting or excluding evidence– or any other error by 14 the court or a party– is ground for . . . vacating, m odifying, or otherwise disturbing a 15 judgm ent or order.” Fed. R. Civ. P. 61. Plaintiff m isunderstands Rule 61, arguing that 16 Rule 61 perm its the Court to set aside the dism issal because Plaintiff’s error was 17 harm less. [Dkt. No. 41-1, p. 9]. To the contrary, Rule 61 prohibits the Court from 18 disturbing a judgm ent based on an error, “unless refusal to do so is inconsistent with 19 substantial justice.” See Bunch v. United States, 680 F.2d 1271, 1283 (9th Cir. 1982). As 20 such, Plaintiff’s Motion to Set Aside Dism issal is denied to the extent she seeks relief 21 from judgm ent under Rule 61. 22 I. 23 Plaintiff’s Motion for Prelim inary Injunction is denied because the Motion to Set 24 Mo tio n fo r Pre lim in ary In ju n ctio n Aside Dism issal is denied and, as such, the case will rem ain closed. 22 1 IV. CON CLU SION 2 For the foregoing reasons, Plaintiff’s Motion to Set Aside Dism issal is 3 denied, and Plaintiff’s Motion for Prelim inary Injunction is denied. All other 4 pending m otions, applications, and requests are vacated. This action is closed, and 5 no further filings shall be accepted without prior approval by the Court. 6 7 IT IS SO ORDERED. 8 9 Dated: October 3, 20 19 10 _______________________________ THE HONORABLE J OHN F. WALTER United States District J udge 11 12 13 Presented by: 14 15 _ _ / s/ Autum n D. Spaeth_ _ _ _ _ _ _ _ _ _ _ _ _ THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 16 17 18 19 20 21 22 23 24 23
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