MacDonald v. United States Department of Homeland Security et al, No. 3:2011cv01088 - Document 105 (S.D. Cal. 2015)
Court Description: ORDER Denying Plaintiff's 100 Motion to Reopen Case, Vacate Dismissal without Prejudice, and Enter Dismissal with Prejudice. Signed by Judge Roger T. Benitez on 7/21/2015. (knb)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 FRED KENNETH MACDONALD, Plaintiff, Case No.: 11CV1088 BEN (KSC) ORDER DENYING PLAINTIFF'S MOTION TO REOPEN CASE, VACATE DISMISSAL WITHOUT PREJUDICE, AND ENTER DISMISSAL WITH PREJUDICE v. UNITED STATES OF AMERICA, et al. Defendants. 14 15 16 Following the Ninth Circuit’s dismissal of his appeal, Plaintiff Fred Kenneth 17 MacDonald moves this Court under Federal Rule of Civil Procedure 60(b)(6) to reopen 18 his case, vacate the dismissal without prejudice, and enter dismissal with prejudice. 19 (Docket No. 100.) The Government has filed an Opposition and Plaintiff a Reply. 20 (Docket Nos. 101, 102.) 21 Plaintiff requested voluntary dismissal of this case without prejudice in 2012. 22 (Docket No. 83.) The Court granted the request.1 (Docket No. 86.) Plaintiff then filed 23 an appeal. (Docket No. 88.) After briefing and oral argument, the Ninth Circuit dismissed 24 25 26 27 1 This case was previously before the Hon. Irma E. Gonzalez. The case was assigned to the undersigned following the Ninth Circuit’s dismissal of Plaintiff’s appeal. References to this Court’s decisions include Judge Gonzalez’s decisions in this case. 1 11CV1088 BEN (KSC) 1 the appeal for lack of jurisdiction. MacDonald v. United States, 578 Fed. Appx. 641 (9th 2 Cir. 2014) [Docket No. 98].) A review of the history of this case and Plaintiff’s 3 arguments, almost all of which directly conflict with the Ninth Circuit’s findings in 4 dismissing his appeal, require denial of his motion. 5 6 BACKGROUND I. 7 Procedural History This action was filed on May 16, 2011 in state court. (Notice of Removal (Docket 8 No. 1).) On May 18, 2011, the Government removed the case to this Court. (Id.) Plaintiff 9 filed a First Amended Complaint on June 8, 2011 asserting claims for violations of the 10 Fourth Amendment, Fifth Amendment, Non-Detention Act, and Federal Tort Claims Act. 11 (Docket No. 4.) Plaintiff’s claims were based on his removal to Canada by the United 12 States and its employees and the year he remained there awaiting the ultimate decision 13 that, as a Canadian-born Indian, he was not removable. (Id.) 14 The Court will not recite the entire procedural history of this case, but notes that 15 the Government and the Individual Defendants filed motions to dismiss challenging 16 Plaintiff’s claims. As a result of those motions to dismiss, the Court dismissed Plaintiff’s 17 Fourth Amendment claim with prejudice based on 8 U.S.C. § 1252(g). His Non- 18 Detention Act claim was dismissed with prejudice. His Federal Tort Claims Act claim 19 was dismissed with prejudice as to the Individual Defendants and dismissed with leave to 20 amend as to the Government. His Fifth Amendment claim was allowed to proceed. 21 Plaintiff filed a motion for reconsideration of the Court’s dismissal of his Fourth 22 Amendment claim under § 1252(g) while subsequent motions to dismiss the Second 23 Amended Complaint (“SAC”) were pending. (Docket No. 55.) He also filed a motion 24 under 28 U.S.C. § 1292(b) to certify the same issue for interlocutory appeal. (Docket No. 25 64.) The Court denied both motions. (Docket No. 74.) 26 After the Court ruled on the motions to dismiss, Plaintiff did not file a Third 27 Amended Complaint or otherwise proceed with the case. He filed a “Request for 2 11CV1088 BEN (KSC) 1 Voluntary Dismissal” in which he “request[ed] the Court dismiss this case without 2 prejudice” under Federal Rule of Civil Procedure 41(a)(2). (Docket No. 83) The Court 3 ordered the Government to show cause in writing why the Court should not dismiss the 4 case without prejudice pursuant to Plaintiff’s request. 5 Government’s response sought costs and fees as a condition of dismissal without 6 prejudice, but offered to withdraw the request if Plaintiff sought dismissal with prejudice. 7 (Docket No. 85.) The Court then granted Plaintiff’s motion and did not require Plaintiff 8 to pay the Government’s costs and fees as a condition of dismissal. (Docket No. 86.) 9 “Plaintiff’s motion for voluntary dismissal [was] GRANTED.” (Docket No. 84.) (Id.) The “Plaintiff’s 10 complaint [was] DISMISSED WITHOUT PREJDUICE, with each party to bear its own 11 costs.” (Id.) 12 After the case was dismissed without prejudice at Plaintiff’s request, he filed an ex 13 parte motion seeking a final entry of judgment. (Docket No. 87.) This was the first time 14 Plaintiff indicated any intention to seek appellate review other than his unsuccessful 15 motion for §1292(b) certification. However, in seeking a final entry of judgment, Plaintiff 16 refers to the Court’s order granting dismissal of the action without prejudice as 17 “memorialize[ing] his decision to stand on the Second Amended Complaint rather than 18 file a Third Amended Complaint.” (Id.) The next day, while that request was pending, 19 Plaintiff filed a notice of appeal with the Ninth Circuit. (Docket No. 89.) The Court 20 denied the motion for entry of judgment and noted that “Plaintiff’s request for voluntary 21 dismissal, filed on May 7, 2012, did not in any way indicate he intended to stand on the 22 Second Amended Complaint, and seek entry of judgment based upon the Court’s orders 23 dismissing certain claims with prejudice and other claims without prejudice.” (Docket 24 No. 92.) The Court also noted that Plaintiff failed to cite any authority giving the Court 25 jurisdiction to enter judgment after having dismissed the case under Rule 41(a)(2) at 26 Plaintiff’s request. (Id.) The Ninth Circuit confirmed this in its order. MacDonald, 578 27 Fed. Appx. at 643 (“At that point, having already dismissed the case without prejudice, 3 11CV1088 BEN (KSC) 1 the district court could no longer consider whether to issue a final appealable judgment, 2 and did not.”). 3 Following briefing and oral argument, the Ninth Circuit found it lacked appellate 4 jurisdiction. Id. at 644. Plaintiff sought and was denied panel rehearing and the mandate 5 issued. (Docket No. 97-98.) 6 II. 7 Ninth Circuit Decision The Ninth Circuit reached a number of important conclusions in dismissing 8 Plaintiff’s appeal. The court found Plaintiff sought voluntary dismissal of his entire case, 9 not just his remaining claims. MacDonald, 578 Fed. Appx. at 642. And, in seeking 10 dismissal of the entire case, “he did not make clear to the district court that he planned to 11 appeal any portion of the case.” Id. at 643. On the contrary, “his request to dismiss the 12 entire case communicated that he did not intend to proceed with any of his claims.” Id. 13 The court specifically found that “the district court’s decision to allow the voluntary 14 dismissal ‘did not imply its intent to grant . . . a final appealable judgment,’ similar to the 15 grant of a Rule 54(b) motion.” Id. (quoting Am. States Ins. Co., Dastar Corp., 318 F.3d 16 881, 888-89 (9th Cir. 2003) and distinguishing James v. Price Stern Sloan, Inc., 283 F.3d 17 1064, 1068 (9th Cir. 2002)). The first time Plaintiff expressed any intention to stand on 18 the SAC for purposes of an appeal was after the case was voluntarily dismissed without 19 prejudice. Id. And significantly, the Ninth Circuit specifically found that Plaintiff’s 20 “actions provide evidence that he sought to circumvent the district court’s gatekeeping 21 roles under Federal Rule of Civil Procedure 54(b) and § 1292(b) and thereby to 22 manufacture appellate jurisdiction improperly.” Id. at 642-43. The court also found there 23 was “no clear, consistent intent that the voluntary dismissal be with prejudice.” Id. at 24 643. On the contrary, the court found Plaintiff’s conduct “after the dismissal confirms 25 that he had not at the time of its entry intended the dismissal to be with prejudice.” Id. at 26 643. 27 /// 4 11CV1088 BEN (KSC) 1 DISCUSSION 2 Plaintiff moves to reopen this case under Federal Rule of Civil Procedure 60(b)(6).2 3 Rule 60(b)(6) provides that “[o]n motion and just terms, the court may relieve a party or 4 its legal representative from a final judgment, order, or proceeding for the following 5 reasons: . . . (6) any other reason that justifies relief.” The Court finds that Plaintiff is not 6 entitled to relief under Rule 60(b)(6) for a number of reasons. 7 “Judgments are not often set aside under Rule 60(b)(6).” Latshaw v. Trainer 8 Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006). “[T]he Rule ‘is used sparingly as 9 an equitable remedy to prevent manifest injustice.” Id. (quoting United States v. The Rule “applies only in 10 Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)). 11 extraordinary circumstances where petitioner’s allegations set up an extraordinary 12 situation which cannot fairly or logically be classified as mere neglect on his part.” United 13 States ex rel. Familian Nw., Inc. v. RG&B Contractors, Inc., 21 F.3d 952, 956 (9th Cir. 14 1994) (citations and internal quotations omitted). 15 Plaintiff’s motion must be denied for at least there reasons. First, he is not entitled 16 to an equitable remedy given his attempt to circumvent this Court’s authority. Second, 17 he has not identified any extraordinary circumstances that justify relief. Third, the relief 18 he seeks is unavailable under Rule 60(b)(6). 19 20 21 22 23 24 25 26 27 Plaintiff specifically concedes that “relief under Rule 60(b)(1) is foreclosed pursuant to the one-year time limit stated in Rule 60(c)(1) . . . ” in seeking relief under Rule 60(b)(6). (Motion 16.) Plaintiff seems to hedge on this point in Reply, an untenable approach given the prior concession in the Motion. (Reply 5-6.) He argues the Court could find his mistake did not actually occur until the Ninth Circuit found it was a mistake in its decision because he thought the law the Ninth Circuit distinguished allowed him to appeal. In essence, it was not a mistake until the Ninth Circuit told him he was wrong even though the court applied existing law. To accept this proposition, the Court would have to conclude that a party is not subject to existing case law until the Ninth Circuit applies it to that party’s particular case. This makes no sense. Additionally, the Court notes that Plaintiff would not be entitled to relief under Rule 60(b)(1). Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997) (finding “neither ignorance nor carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1)” and “attorney error is insufficient grounds for relief under both Rule 60(b)(1) and (6).”). 2 5 11CV1088 BEN (KSC) 1 The Ninth Circuit concluded that Plaintiff “sought to circumvent the district court’s 2 gatekeeping roles under Federal Rule of Civil Procedure 54(b) and §1292(b) and thereby 3 to manufacture appellate jurisdiction improperly.”3 There is ample support for this 4 conclusion in the record and this Court agrees with the conclusion. Having failed in his 5 endeavor to circumvent the Court’s authority, Plaintiff wants to try again through Rule 6 60(b)(6). Relief under Rule 60(b) is equitable. Latshaw, 452 F.3d at 1103. The Court 7 will not reward a party with equitable relief for attempting to, however unsuccessfully, 8 circumvent the Court’s authority. 9 Even if the Court rejected the Ninth Circuit’s conclusion and accepted Plaintiff’s 10 characterization of the proceedings — that he simply did not know how to obtain an 11 appealable final judgment — Plaintiff has not identified any extraordinary circumstances 12 that justify relief. Rather, at best, he was careless and acted without diligence. His 13 conduct before this Court “communicated that he did not intend to proceed with any of 14 his claims,” MacDonald, 578 Fed. Appx. at 643, when he claims his true intention was to 15 only dismiss his remaining claims and stand on his SAC for purposes of appeal.4 At a 16 bare minimum, Plaintiff had an obligation to tell the Court what he was trying to do and 17 allow the Court “to exercise its discretion as to whether to grant the functional equivalent 18 of a partial judgment under Rule 54(b).” Id. at 643. Instead, he filed a motion lacking 19 20 Plaintiff characterizes this conclusion by the Ninth Circuit as “not tenable.” (Motion 10 n.9.) Assuming this Court could disregard the Ninth Circuit’s conclusion, Plaintiff fails to provide a basis to do so. Plaintiff quotes this Court’s finding that “[t]he Court never found Plaintiff’s claims to be frivolous, vexatious, or in bad faith.” But the Court made that finding as a basis for denying the Government’s request for fees and costs in granting Plaintiff’s request for voluntary dismissal. This decision was issued before Plaintiff surprised the Court with a request for a final entry of judgment. Plaintiff’s reliance on this language, preceding the conduct the Ninth Circuit was addressing, is at best misplaced and at worst an attempt to mislead the Court. 4 Contrary to Plaintiff’s assertion in his Motion, he did not “file[] a motion for voluntary dismissal of the remaining claims on May 7, 2012.” (Motion 8.) As the Ninth Circuit found, “he did not dismiss only the ‘remaining claim’ that survived the district court’s orders; instead he explicitly sought dismissal of his entire case.” MacDonald, 578 Fed. Appx. at 642. 3 21 22 23 24 25 26 27 6 11CV1088 BEN (KSC) 1 any indication he was attempting to obtain a final judgment for appeal, sought dismissal 2 without prejudice, and unsuccessfully tried to appeal. These are not extraordinary 3 circumstances. Giving Plaintiff every benefit of the doubt, this can “fairly or logically be 4 classified as mere neglect on his part,” rather than extraordinary circumstances. RG&B 5 Contractors, Inc., 21 F.3d 956 (citations and internal quotations omitted); see also 6 Lehman v. United States, 154 F.3d 1010, 1017 (9th Cir. 1998) (“Neglect or lack of 7 diligence is not to be remedied through Rule 60(b)(6).”). 8 This is sufficient to deny Rule 60(b)(6) relief, however, Plaintiff is also not entitled 9 to relief under Rule 60(b)(6) for another reason. Plaintiff cannot obtain relief through 10 Rule 60(b)(6) on a basis covered by Rule 60(b)(1). “These provisions are mutually 11 exclusive, and thus a party who failed to take timely action due to excusable neglect [, 12 under Rule 60(b)(1),] may not seek relief more than a year after the judgment by resorting 13 to subsection (6).” Pioneer Inv. Servs. Co. v. Bruswick Assocs. Ltd. P’ship, 507 U.S. 380, 14 393 (1993). 15 vocabulary,” that he just failed to procedurally obtain a final appealable judgment, then 16 he is claiming a mistake — a basis for seeking relief under Rule 60(b)(1).5 If the Court accepts Plaintiff’s claim that this was just “an issue of 17 CONCLUSION 18 Plaintiff’s Motion is DENIED. The case remains closed. 19 IT IS SO ORDERED. 20 Dated: July 21, 2015 21 22 23 24 25 26 27 5 If the distinctions between dismissal without prejudice and with prejudice eluded Plaintiff when he filed his request for voluntary dismissal, the Government’s request for dismissal with prejudice as opposed to without prejudice, albeit for a different reason, should have prompted Plaintiff to consider that these words might have some significance. 7 11CV1088 BEN (KSC)
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