Cowan v. Brown et al, No. 3:2014cv01886 - Document 146 (S.D. Cal. 2018)
Court Description: ORDER Denying 142 Motion for "Independent Action". There is no basis for granting Plaintiff's request for relief from the final judgment entered in this case. Plaintiff's motion is therefore denied. Signed by Judge Gonzalo P. Curiel on 8/7/2018. (All non-registered users served via U.S. Mail Service)(rmc)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHAD COWAN, Case No.: 3:14-cv-01886-GPC-WVG Plaintiff, 12 13 v. 14 EDMOND J. BROWN, et al., ORDER DENYING MOTION FOR "INDEPENDENT ACTION" [ECF No. 142] Defendants. 15 16 Before the Court is a motion filed by Plaintiff Chad Cowan. (ECF No. 142.) The 17 18 motion is labeled “Motion for Independent Action under Federal Rule of Civil Procedure 19 [] 60(d)(1).” (Id. at 1.1) For the reasons set forth below, the motion is denied. I. 20 Background 21 Plaintiff filed this suit in August of 2014. (ECF No. 1.) According to his 22 complaint, California government officials—including the Governor, state judges, and 23 employees of the Department of Child Support Services (“DCSS”)—violated Plaintiff’s 24 rights by forcing Plaintiff to sign a DCSS form and pay child support in the form of 25 “Federal Reserve Notes, which are not backed by gold or silver.” (Id. at 2–3.) The 26 complaint also references actions by Defendants that required Plaintiff to divulge his 27 28 1 Citations to specific pages in the record refer to pagination provided by the CM/ECF system. 1 3:14-cv-01886-GPC-WVG 1 personal information. (Id.) On November 20, 2014, the Court granted a motion to 2 dismiss filed by Defendants. (ECF No. 23.) The Court explained that the Judicial 3 Defendants were shielded by judicial immunity; Governor Brown was shielded by 4 sovereign immunity; and allegations against the remaining officials failed to identify any 5 violation of Plaintiff’s rights. The Court gave Plaintiff leave to amend his complaint. 6 (Id. at 10–11.) 7 Plaintiff filed an amended complaint, which elaborated on Plaintiff’s original 8 claims. (ECF No. 25.) According to the amended complaint and the exhibits attached to 9 it, a state official forced Plaintiff to sign an answer to a civil complaint against Plaintiff 10 regarding parental obligations. (Id. at 14, 16.) Plaintiff characterized the answer form he 11 signed as a “contract” and asserted that this contract was invalid because he signed it 12 under duress. (E.g. id. at 3.) Plaintiff alleged that California officials violated Plaintiff’s 13 due process rights and forced him into involuntary servitude by requiring that he pay 14 child support obligations. Defendants again moved to dismiss. In response, Plaintiff 15 filed several motions and statements asserting that Defendants’ appearances and filings 16 were improper because Defendants had not personally responded to the amended 17 complaint and had used improper “style.” (ECF Nos. 30, 32, 34, 37, 38, 42, 46, 48, 51.) 18 Plaintiff never submitted an opposition to the Defendants’ motions to dismiss. On March 19 16, 2015, the Court granted Defendants’ motions to dismiss. (ECF No. 57.) It noted that 20 Plaintiff had not actually responded to the substantive arguments in Defendants’ motions, 21 which “indicate[d] Plaintiff’s disregard for disposing of his case on the merits.” (Id. at 22 3.) The Court dismissed the amended complaint without prejudice. (Id. at 4.) The same 23 day, however, the Clerk of Court inadvertently issued a final judgment in the case. (ECF 24 No. 58.) After this mistake was discovered, the erroneous final judgment was vacated. 25 (See id. (indicating that the final judgment had been deleted).) 26 On April 3, 2015, Plaintiff filed a second amended complaint. (ECF No. 65.) 27 Defendants again moved to dismiss. Again, Plaintiff filed several motions based on the 28 assertion that Defendants’ appearances and filings were improper. Without holding a 2 3:14-cv-01886-GPC-WVG 1 hearing, the Court granted the motions to dismiss. (ECF No. 95.) The Court explained 2 that the answer Plaintiff was allegedly forced to sign by state officials was not a contract, 3 as he contended, but rather was “a form answer to a complaint seeking to establish 4 parental obligations, including the payment of child support.” (Id. at 4–5.) Because 5 Plaintiff offered no argument as to why California’s child support laws should not apply 6 to him, the Court found that the second amended complaint failed to state a claim that 7 Defendants’ child support enforcement methods were wrongful. (Id. at 5.) Having 8 dismissed Plaintiffs’ claims for the third time, the Court found that dismissal with 9 prejudice was appropriate. (Id. at 6.) The Clerk of Court issued a final judgment in favor 10 of Defendants. (ECF No. 96.) Two weeks later, Plaintiff filed a motion seeking relief 11 from the Court’s ruling and the final judgment. (ECF No. 98.) The main thrust of 12 Plaintiff’s motion was that the Court had improperly ruled on Defendants’ motions and 13 entered judgment without holding a “hearing or trial,” despite Plaintiff’s having requested 14 a jury trial in this case. (Id. at 4.) The Court denied this motion, explaining that Plaintiff 15 failed to make any of the showings necessary to obtain relief under Federal Rules of Civil 16 Procedure 59 or 60. (ECF No. 99.) 17 Plaintiff filed a notice of appeal, which the Ninth Circuit dismissed on January 27, 18 2016. (ECF No. 107.) The Ninth Circuit’s dismissal order stated that, after reviewing 19 Plaintiff’s filings, the panel had determined that “the questions raised in this appeal are so 20 insubstantial as not to require further argument.” (Id.) On February 29 and April 19, 21 2016, Plaintiff asked this Court to enter default against Defendants; the Court rejected 22 these filings as procedurally improper. (ECF Nos. 109, 110.) Plaintiff again appealed. 23 (ECF No. 112.) The Ninth Circuit dismissed the appeal for lack of jurisdiction because 24 this Court’s rejections of Plaintiffs’ filings were not final orders. (ECF No. 121.) After 25 the Ninth Circuit’s dismissal, Plaintiff sent three filings to the undersigned and three 26 filings to Magistrate Judge Gallo, all seeking judgment in Plaintiff’s favor. (ECF Nos. 27 122-1, 123-1, 124-1, 125-1, 126-1, 127-1.) Plaintiffs’ requests asserted that because 28 Defendants did not appear at the hearing on their motions to dismiss—which the Court 3 3:14-cv-01886-GPC-WVG 1 vacated prior to the date of the hearing—Plaintiff somehow was entitled to judgment. 2 (Id.) Because these filings were procedurally improper, however, the undersigned and 3 Magistrate Judge Gallo rejected them. (ECF Nos. 122, 123, 124, 125, 126, 127.) 4 Plaintiff again appealed. (ECF No. 128.) The Ninth Circuit again dismissed the appeal 5 for lack of jurisdiction. (ECF No. 137.) Plaintiff has now filed a motion labeled “Motion for Independent Action under 6 7 8 9 Federal Rule of Civil Procedure [] 60(d)(1).” (ECF No. 142.) II. Discussion Federal Rule of Civil Procedure 60 governs requests for relief from a judgment or 10 order. Rule 60(b) provides that parties may seek relief from a judgment or order under 11 certain circumstances, such as error, new evidence, fraud, or the judgment being void. 12 Rule 60(c) requires that a Rule 60(b) motion asserting error, new evidence, or fraud be 13 brought no later than one year after the entry of the judgment. Fed. R. Civ. P. 60(c)(1). 14 This one-year limitation does not apply to motions under Rule 60(b)(4), (5), and (6), 15 which must be brought only within a reasonable amount of time. Id. 16 Rule 60(d)(1) acts as a failsafe to Rule 60(c)’s one-year limitation. It clarifies that 17 Rule 60 “does not limit a court’s power to . . . entertain an independent action to relieve a 18 party from a judgment, order, or proceeding.” The purpose of Rule 60(d)(1) was to 19 preserve: 20 21 22 23 whatever power federal courts had prior to the adoption of Rule 60 to relieve a party of a judgment by means of an independent action according to traditional principles of equity. Thus, for example, an independent action for relief from a judgment may be brought by a person whose interests are affected by the judgment, even if that person was not a party to the original action. 24 12 Moore’s Fed. Prac. Civ. § 60.80 (Matthew Bender 3d ed.). Plaintiff appears to believe 25 that an “independent action” is something that can be requested in this case. But Rule 26 27 60(d)(1) does not grant the district court with any powers or provide any litigant an avenue for relief; rather, it merely preserves a cause of action a litigant might be able to 28 4 3:14-cv-01886-GPC-WVG 1 bring outside of the bounds of this suit. In other words, Rule 60(d)(1)’s reference to an 2 “independent action” envisions a suit outside of the matter in which judgment has been 3 entered. In this sense, Plaintiff’s Rule 60(d)(1) motion is procedurally improper: to seek 4 5 relief from judgment in this case via an independent action, Plaintiff would have to file a 6 new lawsuit. Nonetheless, given Plaintiff’s pro se status, the Court finds it appropriate to 7 construe this motion as seeking relief from the judgment in this case under Rule 60(b)(6), 8 which allows the Court to grant relief from a judgment for “any other reason that justifies 9 relief.”2 The Court will therefore consider the arguments presented in Plaintiff’s motion.3 10 For the reasons set forth below, Plaintiff’s assertion that judgment in this case was 11 anything but proper is not only false, but also frivolous. 12 Plaintiff argues that the judgment in this case is invalid because Defendants never 13 responded to Plaintiff’s complaint. As the docket makes clear, that assertion is incorrect. 14 All Defendants appeared through counsel and successfully sought dismissal of Plaintiff’s 15 complaints by filing a motion under Federal Rule of Civil Procedure 12. Plaintiff argues 16 that these appearances and filings were improper because they were not made by 17 18 19 20 21 22 23 24 25 26 27 28 Part of Plaintiff’s motion is premised on the assertion that the judgment in this case is the result of what he labels “fraud.” A Rule 60 motion based on fraud would fall under Rule 60(b)(3), which is subject to Rule 60(c)’s one-year time limitation. Courts in this circuit have described that one-year limitation as jurisdictional. See, e.g., Wolff v. California, 236 F. Supp. 3d 1154, 1164 (C.D. Cal. 2017). If Rule 60(c)’s limitation is jurisdictional, the Court would not have power to consider this motion because that one-year deadline has long passed. Nonetheless, as discussed below, the main thrust of Plaintiff’s motion is not fraud, but rather that the Court somehow engaged in misconduct by (1) permitting Defendants’ counsel to file an answer to Plaintiff’s complaints, and (2) choosing not to hold a hearing or trial in this case before entering final judgment. The Court thus treats this motion as one seeking relief from the judgment on the ground of judicial misconduct under Rule 60(b)(6). 3 Plaintiff’s motion requests the convening of a three-judge district court panel. (ECF No. 142 at 1.) A three-judge panel is to be convened only when “required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” 28 U.S.C. § 2284(a). Plaintiff’s claims are not related to apportionment of districts or statewide legislative bodies, and he has not identified any other federal statute that calls for a three-judge panel under the circumstances of this case. As a result, the Court DENIES Plaintiff’s request for a three-judge panel. 2 5 3:14-cv-01886-GPC-WVG 1 Defendants themselves. He asserts that “[a]s a man the plaintiff was and is under no 2 obligation to entertain or be forced into, any negotiations with 3rd parties, and or, to 3 produce a response to hearsay, from these interlopers.” (ECF No. 142 at 4.) Plaintiff’s 4 argument has no basis in law or the Court’s procedures. Any litigant in a case before this 5 Court may appear through counsel, so long as that counsel has either been admitted to 6 this Court’s bar or has been granted leave to appear pro hac vice. See S.D. Cal. L. Civ. R. 7 83.3. Defendants’ attorneys in this case are all members of this Court’s bar. Under this 8 Court’s local rules, because Defendants’ counsel appeared in this case on Defendants’ 9 behalf, Defendants were not permitted to file any document on their own behalf: 10 11 12 13 14 Whenever a party has appeared by an attorney, the party may not afterwards appear or act in the party’s own behalf in the action, or take any step in that action, unless an order of substitution has first have been made by the court, after notice to the attorney of such party, and to the opposite party; provided, that the court may in its discretion hear a party in open court, notwithstanding the fact that the party has appeared, or is represented by an attorney. 15 S.D. Cal. L. Civ. R. 83.3(f)(1). Because Defendants’ counsel properly filed documents 16 on Defendants’ behalf in this case, Plaintiff’s assertion that Defendants never answered 17 his complaints is incorrect. As a result, contrary to Plaintiff’s repeated assertions, there 18 was never any basis for the Court to enter default against Defendants in this case. 19 Plaintiff’s argument that Defendants’ counsel’s filings constitute “hearsay” also 20 lacks merit. Hearsay is an evidentiary concept that prevents a party from using an out-of- 21 court statement to prove the truth of the matter asserted in that statement. See Fed. R. 22 Evid. 801–807. The Federal Rules of Evidence’s hearsay prohibition does not apply to 23 filings on the Court’s docket. 24 Plaintiff’s also argues that the Court erred in this case by dismissing Plaintiff’s 25 complaint with prejudice and entering final judgment in favor of Defendants without 26 holding a hearing or trial. In light of Plaintiff’s deficient allegations and failure to oppose 27 the motions to dismiss, however, Plaintiff was not entitled to a hearing or trial. In 28 defending a motion to dismiss, a civil plaintiff is not automatically entitled to be heard at 6 3:14-cv-01886-GPC-WVG 1 an in-person hearing; the Court may take any motion before it under submission without 2 oral argument. S.D. Cal. L. Civ. R. 7.1 (d)(1) (“A judge may, in the judge’s discretion, 3 decide a motion without oral argument.”). And because a plaintiff opposing a motion to 4 dismiss in a civil case may not offer evidence in opposition to that motion—except for 5 limited circumstances not applicable here, such as a factual subject-matter jurisdiction 6 challenge—the Court addressing such a motion need not hold an evidentiary hearing. 7 Nor was Plaintiff entitled to a trial in this case. If a federal civil plaintiff fails to 8 allege a plausible claim for relief, or otherwise fails to oppose a Rule 12(b)(6) motion, the 9 Court may enter judgment against the plaintiff without offending the plaintiff’s Seventh 10 Amendment right to a jury trial. The Seventh Amendment does not prohibit federal 11 courts from employing pre-trial procedures that existed under English common law. 12 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935) (“The right of trial by 13 jury . . . preserved [in the Seventh Amendment] is the right which existed under the 14 English common law when the amendment was adopted.”). The “aim” of the Seventh 15 Amendment was 16 17 18 19 to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court. 20 Id. “Under the English common law, a case could be dismissed before trial upon a 21 demurrer to the pleadings,” which involved “the plaintiff or the defendant admit[ting] the 22 23 24 25 26 27 truth of the plea or the declaration, respectively, and argu[ing] that he was entitled to judgment under the law. If the demurring party was correct, he received judgment.” Suja A. Thomas, The Seventh Amendment, Modern Procedure, and the English Common Law, 82 Wash. U. L.Q. 687, 706–07 (2004) (citing 3 William Blackstone, Commentaries on the Laws of England 314–15 (Oxford, 2d ed. Clarendon Press 1768)). This demurrer procedure did not invade the historical division of labor between judge and jury because 28 7 3:14-cv-01886-GPC-WVG 1 it asked the court to assume all facts to be in favor of the nonmoving party and determine 2 the case on the basis of law alone. The modern federal motion to dismiss is analogous to 3 the English common law demurrer. In granting the motions to dismiss in this case, the 4 Court determined Plaintiff’s case on the basis of law and “form or procedure.” The Court 5 determined that Plaintiff’s claims were deficient as a matter of law because, assuming all 6 of Plaintiff’s allegations were true, Plaintiff could not satisfy the legal requirements of his 7 claims. What’s more, Plaintiff’s failure to oppose Defendants’ motions to dismiss— 8 another basis on which the Court dismissed Plaintiff’s claims—were matters of “form or 9 procedure” he had no right to have a jury decide. 10 As a final matter, Plaintiff asserts that the undersigned should be disqualified from 11 this case under 28 U.S.C. § 455(a) “due to his prejudicial past behavior.” (ECF No. 142 12 at 3.) Section 445(a) requires recusal of a judge when “his impartiality might reasonably 13 be questioned.” When addressing a motion under § 455(a), the Court applies an objective 14 test: “whether a reasonable person with knowledge of all the facts would conclude that 15 the judge’s impartiality might reasonably be questioned.” Clemens v. U.S. Dist. Ct. for 16 Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005). “[J]udicial rulings alone almost 17 never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 18 U.S. 540, 555 (1994). Moreover, 19 20 21 22 opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. 23 Id. As the Court has explained above, its rulings in this case have not been contrary to 24 law, let alone the product of deep-seated favoritism. And even if the Court’s rulings were 25 erroneous, that would not provide a basis for recusal. 26 The only other basis for recusal offered by Plaintiff is the fact that he has filed a 27 complaint against the undersigned with the Ninth Circuit and has also written a letter to 28 the Clerk of this Court, copies of which he sent to the President of the United States, the 8 3:14-cv-01886-GPC-WVG 1 Chief Justice of the United States, the Circuit Justice, the Attorney General, and 2 chairpersons of relevant judiciary and oversight committees. (ECF No. 142 at 24–29, 3 47–53.) The Ninth Circuit has held that a litigant’s filing of a complaint of judicial 4 misconduct is not itself a valid ground for recusal of the same judge, “lest we open the 5 door to misuse of the judicial misconduct complaint process as a means of removing a 6 disfavored judge from a case.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 7 2004). Because there is no other reason to question the undersigned’s impartiality in this 8 case, Plaintiff’s filing of complaints against the undersigned is not a basis for recusal. 9 10 III. Conclusion For the reasons set forth above, there is no basis for granting Plaintiff’s request for 11 relief from the final judgment entered in this case. Plaintiff’s motion is therefore 12 DENIED. 13 14 IT IS SO ORDERED. Dated: August 7, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:14-cv-01886-GPC-WVG
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