Hart et al v. Wesen et al, No. 2:2023cv00309 - Document 66 (W.D. Wash. 2023)
Court Description: ORDER denying Plaintiffs' 64 MOTION for Reconsideration. Signed by Judge James L. Robart. (SS) (cc: All Plaintiffs via USPS)
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Hart et al v. Wesen et al Doc. 66 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 CODY R. HART, et al., Plaintiffs, 11 CASE NO. C23-0309JLR ORDER v. 12 13 RONALD G. WESEN, et al., Defendants. 14 15 Before the court is pro se Plaintiffs Cody Hart, Derrill Fussell, Kevin Ewing, 16 Timothy Garrison, Steven Rindal, and Kathy LaFreniere’s (collectively, “Plaintiffs”) 17 motion for reconsideration. (Mot. (Dkt. # 64).) The motion, however, does not 18 specifically identify any order for this court to reconsider. (See generally Mot.) Instead, 19 the motion seeks “relief from judgments as delineated in Dockets # 45, 47, 51, and 56.” 20 (Mot. at 1-2.) The cited docket entries are not court orders or judgments, but filings by 21 various parties related to Defendant RLI Insurance Company’s (“RLI”) multiple requests 22 for attorneys’ fees in this matter. (See 1st Mot. for Fees (Dkt. # 45); Pl. 1st Resp. (Dkt. ORDER - 1 Dockets.Justia.com 1 # 47); Pl. 2d Resp. (Dkt. # 51); 2d Mot. for Fees (Dkt. # 56).) Plaintiffs’ motion also 2 appears to relate to the court’s November 3, 2023 order denying Plaintiffs’ motion for 3 relief from judgment. (See 11/3/23 Order (Dkt. # 63) at 1-2 (construing various 4 post-judgment motions filed by Plaintiffs collectively as a motion for relief from 5 judgment under Federal Rule of Civil Procedure 60(b) and denying the same); see also 6 Mot. at 1 (citing Fed. R. Civ. P. 60(b)).) Accordingly, the court construes the instant 7 motion as either (1) an opposition to RLI’s pending motion for attorneys’ fees, or (2) a 8 motion for reconsideration of the court’s November 3, 2023 order denying Plaintiffs’ 9 motion for relief from judgment. For the reasons discussed below, the court DENIES 10 11 Plaintiffs’ motion. 1 The court first addresses Plaintiffs’ arguments concerning attorney’s fees. By way 12 of background, RLI filed a motion for attorneys’ fees on August 21, 2023, which the 13 court struck without prejudice because RLI failed to properly serve Plaintiffs with a copy 14 of the motion. (See 1st Mot. for Fees; 10/2/23 Order (Dkt. # 50) at 2.) On October 10, 15 2023, RLI renewed its motion for attorneys’ fees, and that motion remains pending 16 before the court. (See 2d Mot. for Fees (noted for consideration on October 27, 2023).) 17 The instant motion raises legal arguments related to attorney’s fees and appears to oppose 18 an award of attorneys’ fees in RLI’s favor. (See Mot. at 2-3 (arguing that RCW 4.83.185, 19 20 21 22 1 Plaintiffs’ motion also includes a brief request that the court consider sanctioning “Defendants’ counsel” pursuant to 28 U.S.C. § 1927 “for actions that unnecessarily and vexatiously multipl[ied] proceedings.” (Mot. at 3.) But Plaintiffs make no argument in support of this request and do not even identify the conduct for which they seek sanctions. (See generally Mot.) Plaintiffs’ motion is therefore denied to the extent that it can be construed as a motion for sanctions. ORDER - 2 1 a Washington statute authorizing attorneys’ fees, does not apply to this federal court 2 action).) The court therefore construes Plaintiffs’ motion for reconsideration as an 3 untimely opposition to RLI’s pending motion for attorneys’ fees. Any opposition to 4 RLI’s motion was due no later than October 23, 2023. See Local Rules W.D. Wash. LCR 5 7(d) (“Any opposition papers shall be filed and served not later than the Monday before 6 the noting date.”). Accordingly, the court DENIES Plaintiffs’ motion to the extent it asks 7 this court to consider untimely arguments in opposition to RLI’s motion for fees. 8 9 The court next addresses Plaintiffs’ request for reconsideration of the court’s November 3, 2023 order. In that order, the court noted that Plaintiffs’ claims: (1) arose 10 from allegations that various Skagit County officials failed to obtain official bonds as 11 required by state law; (2) raised only a generalized grievance and therefore failed to 12 articulate an injury-in-fact sufficient to confirm standing; and (3) had therefore been 13 dismissed for lack of subject matter jurisdiction. (11/3/23 Order at 2.) The court denied 14 Plaintiffs’ motion for relief from judgment, concluding that Plaintiffs had failed to show 15 they meet any of the six grounds for such relief under Federal Rule of Civil Procedure 16 60(b). (Id. at 3.) Plaintiffs now seek reconsideration of that determination based on 17 newly discovered evidence and alleged fraud. (Mot. at 2.) 18 “Motions for reconsideration are disfavored,” and the court “will ordinarily deny 19 such motions in the absence of a showing of manifest error in the prior ruling or a 20 showing of new facts or legal authority which could not have been brought to its attention 21 earlier with reasonable diligence.” Local Rules W.D. Wash. LCR 7(h)(1). 22 “Reconsideration is an extraordinary remedy,” and the moving party bears a “heavy ORDER - 3 1 burden.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Federal 2 Rule of Civil Procedure 60(b) outlines six possible grounds for relief from a final 3 judgment, including “newly discovered evidence that, with reasonable diligence, could 4 not have been discovered in time to move for a new trial under Rule 59(b),” and “fraud 5 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 6 opposing party.” Fed. R. Civ. P. 60(b)(2), (3). To obtain relief from judgment based on 7 newly discovered evidence, the moving party must show that (1) the evidence “in fact 8 constitutes newly discovered evidence within the meaning of Rule 60(b),” (2) “the 9 moving party exercised due diligence to discover this evidence,” and (3) the evidence is 10 “of such magnitude that production of it earlier would have been likely to change the 11 disposition of the case.” Trendsettah USA, Inc. v. Swisher Int’l, Inc., 31 F.4th 1124, 1136 12 (9th Cir. 2022) (quoting Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 13 (9th Cir. 2003)). To obtain relief from judgment based on fraud, “the moving party must 14 establish that a judgment was obtained by fraud, misrepresentation, or misconduct, and 15 that the conduct complained of prevented the moving party from fully and fairly 16 presenting the case.” In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987). 17 Here, Plaintiffs seek reconsideration and relief from judgment based on newly 18 discovered evidence that they claim “was not available prior to the [court’s] ruling” and 19 “could not have been discovered [earlier] with reasonable diligence.” (Mot. at 2); Fed. R. 20 Civ. P. 60(b)(2). Specifically, Plaintiffs describe “revelations” in a Skagit County 21 Superior Court action which “highlight substantial violations of state and federal laws” 22 by Defendant Richard Weyrich, “including the illegal appointment of deputies and ORDER - 4 1 performing official duties without a valid official bond.” (Mot. at 2 (citing Not. of 2 Related Case (Dkt. # 64) (describing the “related case” in Skagit County Superior Court 3 in which Mr. Hart, a plaintiff herein, petitioned for Mr. Weyrich’s recall)).) Plaintiffs 4 also seek reconsideration and relief from judgment based on alleged “fraud and 5 misconduct” by Defendants “and their counsels,” who Plaintiffs claim concealed the fact 6 that Mr. Weyrich “and his deputies were operating without the necessary bonds and oaths 7 of office.” (Id.); Fed. R. Civ. P. 60(b)(3). 8 9 Plaintiffs identify neither manifest error in the court’s prior order, nor facts or legal authority which could not have been brought to the court’s attention earlier with 10 reasonable diligence sufficient to warrant reconsideration. Local Rules W.D. Wash. LCR 11 7(h)(1). To start, Plaintiffs’ “new evidence” does not in fact constitute newly discovered 12 evidence within the meaning of Rule 60(b). Trendsettah USA, 31 F.4th at 1136. 13 Plaintiffs point to nothing more than unproven allegations that Mr. Hart himself made in 14 a separate lawsuit concerning Mr. Weyrich’s supposed misconduct. But allegations are 15 not evidence. See, e.g., Williams v. United States, CV-17-0426-PHX-ROS (JFM), 2020 16 WL 4484516, *27 (D. Ariz. Mar. 23, 2020) (“[A]llegations are not evidence, and the 17 entire purpose of a trial is to determine whether allegations are true or false.”). 18 Plaintiffs also fail to demonstrate fraud within the meaning of Rule 60, which 19 authorizes relief from judgment where the judgment was obtained through fraud and the 20 moving party was prevented from fully and fairly presenting the case. Peacock, 809 F.2d 21 at 1404-05. The court dismissed this matter and entered judgment against Plaintiffs 22 because they lack standing sufficient to confer subject matter jurisdiction. (8/7/23 Order ORDER - 5 1 (Dkt. # 42) at 1-2; Judgment (Dkt. # 44).) The fraud alleged here is the supposed 2 “concealment of the fact that . . . [Mr.] Weyrich, and his deputies were operating without 3 the necessary bonds and oaths of office” (Mot. at 2), which neither shows that the 4 judgment was obtained through fraud nor that any such fraud prevented Plaintiffs from 5 fully and fairly presenting their case. Accordingly, Plaintiffs are not entitled to 6 reconsideration of the court’s November 3, 2023 order denying Plaintiffs’ motion for 7 relief from final judgment. 8 For the foregoing reasons, the court DENIES Plaintiffs’ motion (Dkt. # 64). 9 Dated this 28th day of November, 2023. 10 A JAMES L. ROBART United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 6
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