Free Order on Motion to Continue - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Leon Smith, Plaintiff, vs. Jesse Plath, et al.,

13 Defendants. 14 15 16

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No. CV 02-2492-PHX-EHC ORDER

On October 10, 2006, the Court filed an Order dismissing this case (Dkt. 105). The 17 Court found that Plaintiff pro se had failed to respond to Defendants' Motion to Dismiss for 18 Failure to Prosecute and that no proceedings in the case had occurred for over seven months. 19 Judgment was entered on October 10, 2006 (Dkt. 106). 20 On October 26, 2007, Plaintiff pro se filed a Motion to Continue (Dkt. 109). Plaintiff 21 seeks to have the case "continue forward with Court Proceedings." 22 As grounds in support of his Motion to Continue, Plaintiff alleges that in November 23 2005 he became homeless and lost his possessions, including his court papers, because he 24 and his wife lost their home due to financial problems. Plaintiff alleges that he stayed with 25 family and friends and had no address or phone number for a period of time. Although 26 Plaintiff "was trying to do his best to get back on his feet, and not be homeless", nevertheless 27 he "finally went back into doing illegal activities, such as fraudulent activities" (Dkt. 109, 28
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page 1). Plaintiff "ended up back in prison" (id.). Plaintiff claims that if this lawsuit had settled, "none of this would have happened" (Dkt. 109, p. 2). Plaintiff appears to argue that had Defendants not refused to settle this case, Plaintiff would not have become homeless, reentered prison, and "lost everything". Plaintiff urges that this case should proceed and that Defendants should pay him punitive damages. Plaintiff's Motion to Continue was filed more than ten days after entry of Judgment. The Court has construed Plaintiff's Motion to Continue as a Motion to Vacate the Order of Dismissal and Judgment under Fed.R.Civ.P. 60(b). Rule 60(b) provides that on motion and under such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, ...; or (6) upon any other reason justifying relief from the operation of the judgment. Grounds (1), (2) and (3) must be raised by motion not more than one year after the judgment or order was entered. Plaintiff's Motion to Continue was filed more than one year after entry of Judgment and grounds (1), (2) and (3) are not available. Plaintiff does not raise grounds (4) and (5). Plaintiff's Motion to Continue therefore has been considered as a Motion to Vacate Order of Dismissal and Judgment based on ground (6). Rule 60(b)(6) provides the district court with power to vacate a judgment whenever such action is appropriate to accomplish justice and upon a showing of extraordinary circumstances. Ackermann v. United States, 340 U.S. 193, 199-201 (1950). The Rule 60(b)(6) "catch-all" provision "applies only when the reason for granting relief is not covered by any of the other reasons set forth in Rule 60." Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007). As further explained in Delay: `Rule 60(b)(6) has been used sparingly as an equitable remedy to prevent manifest injustice' and `is to be utilized only where extraordinary circumstances prevented a party from taking -2Case 2:02-cv-02492-EHC Document 110 Filed 01/02/2008 Page 2 of 4

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timely action to prevent or correct an erroneous judgment.' United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). A party seeking to re-open a case under Rule 60(b)(6) `must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion.' Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 n. 8 (9th Cir. 2002). Delay, 475 F.3d at 1044. The docket shows that on December 14, 2005, the Court issued a Show Cause Order and set a hearing for February 27, 2006 for Plaintiff to appear and show cause why the case should not be dismissed for failure to prosecute (Dkt. 100). Plaintiff appeared in person at the show cause hearing. Plaintiff informed the Court that he was working but had lost his house in November 2005. The Court discussed with Plaintiff that a number of hearings had been scheduled but Plaintiff had failed to appear. Defendants filed their Motion to Dismiss on August 14, 2006 (Dkt. 104). Defendants recounted in their Motion the instances showing Plaintiff's lack of diligence in prosecuting this case, including his attorney's inability to contact him (during the time Plaintiff was represented by counsel), his failure to appear at scheduled hearings, and his failure to answer outstanding discovery requests during the calendar year 2005. Plaintiff also did not keep the Court advised of his address. The docket shows that mail sent to Plaintiff was returned as undeliverable/wrong address on or about October 20, 2006 (Dkt. 107). Instances of Plaintiff's lack of diligence in prosecuting this case appear in the record before he lost his home and court papers in November 2005. Plaintiff's loss of his home in November 2005, his return to "doing illegal activities, such as fraudulent activities" and his "end[ing] up back in prison" do not demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution of this action in a proper fashion. Plaintiff has not demonstrated "extraordinary circumstances" that warrant setting aside the Order of Dismissal and Judgment. // -3Case 2:02-cv-02492-EHC Document 110 Filed 01/02/2008 Page 3 of 4

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Accordingly, IT IS ORDERED that Plaintiff's Motion to Continue (Dkt. 109), construed as a Motion to Vacate Order of Dismissal and Judgment, is denied. IT IS FURTHER ORDERED that this case shall remain closed. DATED this 27th day of December, 2007.

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