Neuendorf v. Unknown Party et al

Filing 21

ORDER denying 20 Motion to Compel to Set Aside Order. This case must remain closed. Signed by Senior Judge Robert C Broomfield on 5/20/13. (LAD)

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MGD

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Calvin Neuendorf, II,
Plaintiff,

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ORDER
v.

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No. CV 10-0766-PHX-RCB (DKD)

Unknown Party, et al.,
Defendants.

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Pending in this closed case is Plaintiff’s “Motion to Compel to Set Aside Order.”

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(Doc. 20.) The Court will deny this Motion.

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I.

Procedural Background

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On April 6, 2010, Plaintiff John Calvin Neuendorf, II, who is currently confined in

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Arizona State Prison Complex-Eyman, Special Management Unit I, in Florence, Arizona,

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filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) On the first

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page of the Complaint, Plaintiff marked the box next to “First Amended Complaint.”

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Despite this indication that the Complaint was intended as a First Amended Complaint,

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the Clerk of Court treated the pleading as a new Complaint and opened the instant case

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because Plaintiff had not filled in a case number in the caption of the pleading.

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Upon investigation, the Court determined that the Complaint was apparently

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meant as a First Amended Complaint in another case filed by Plaintiff (Neuendorf v.

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Unknown Party, et al., CV 10-124-PHX-RCB (DKD)). On April 8, 2010, the Court

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issued an Order dismissing this case (CV 10-766-PHX-RCB (DKD)) without prejudice

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and directed the Clerk of Court to file a copy of the Complaint as a First Amended

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Complaint in case number CV 10-0124-PHX-RCB (DKD), nunc pro tunc April 6, 2010.

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(Doc. 3.)

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Thereafter, Plaintiff filed various motions, including two motions asking the Court to

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reopen his case (Doc. 5, 6), which the Court treated as being brought pursuant to Rule

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60(b) of the Federal Rules of Civil Procedure, and denied on September 16, 2010. (Doc.

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10.) On October 13, 2010, Plaintiff filed a “Motion: To or for Reconsideration Rule

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60(B),” which the Court denied on November 15, 2010, finding that Plaintiff had failed

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to show that his case meets any of the requirements for relief under Rule 60(b). (Doc.

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Judgment was entered in the instant case on April 9, 2010.

(Doc. 4.)

In that Order, the Court also denied Plaintiff’s “Motion: For Transcripts of

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Comple[]te Record,” in which Plaintiff had requested that the Court send him a copy of

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all the cases he has filed with this Court because his “paperwork has been destroyed from

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flooding and is no longer legible.” The Court noted that it is “not in a position to act as a

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copy service for Plaintiff. Moreover, this case is closed and must remain closed.” (Id.)

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Plaintiff filed a Notice of Appeal on September 2, 2010, and on November 4,

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2010, the Mandate of the Ninth Circuit Court of Appeals, dismissing Plaintiff’s appeal

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for lack of jurisdiction, was filed in this action. (Doc. 16.)

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II.

Motion to Compel

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On April 5, 2013, Plaintiff filed a “Motion to Compel to Set Aside Order”

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(“Motion”) in which he asks the Court “to compel to set aside the judg[]ment of dismissal

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for CV-766 filed on 04/06/10” and to send him copies of “all the cases in this court THE

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DISTRICT COURT FOR ARIZONA,” except for his “newest filing.” (Doc. 20.)

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Plaintiff does not cite any authority for compelling a court to set aside a judgment.

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In this case, where Plaintiff submitted his Motion after entry of judgment, the only

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appropriate procedural devices are: (1) a motion to alter or amend judgment pursuant to

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Rule 59(e), Federal Rules of Civil Procedure; or (2) a motion for relief from judgment

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pursuant to Rule 60(b), Federal Rules of Civil Procedure. See, e.g., United States v.

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Nutri-Cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992); Fuller v. M.G. Jewelry, 950 F.2d

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1437, 1441-42 (9th Cir. 1991) (motion to reconsider can be construed as a Rule 60 or

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Rule 59 motion even when movant brought it under local rules and cited no governing

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Federal Rules of Civil Procedure).

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Rule 59(e) of the Federal Rules of Civil Procedure requires that a party serve a

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motion within 28 days after the entry of judgment. Judgment in this case was entered on

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April 9, 2010—over three years ago. Therefore, Plaintiff’s Motion does not comply with

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Rule 59. See McConnell v. MEBA Med. and Benefits Plan, 778 F.2d 521, 526 (9th Cir.

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1985) (the time to file “is to be strictly construed”).

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Nor does Plaintiff’s Motion comply with Federal Rule of Civil Procedure 60(b),

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which, “provides for reconsideration only upon a showing of (1) mistake, surprise, or

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excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a

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satisfied or discharged judgment; or (6) ‘extraordinary circumstances’ which would

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justify relief.” School Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d

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1255, 1263 (9th Cir. 1993). Rule 60(c)(1) requires that a Rule 60(b) motion “be made

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within a reasonable time,” and “no more than a year after the entry of the judgment or

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order or the date of the proceeding,” if the reason involves mistake, newly-discovered

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evidence, or fraud. Thus, a district court lacks jurisdiction to consider a motion under

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Rule 60(b)(1)-(3), if the motion is filed more than one year after judgment. Nevitt v.

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United States, 886 F.2d 1187, 1188 (9th Cir. 1989). Because judgment in this case was

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entered three years ago, the Court lacks jurisdiction to consider Plaintiff’s Motion.

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Accordingly, Plaintiff’s Motion is denied.

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III.

Request for Copies

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Plaintiff asks the Court to “send [him] copies for all cases . . . in this court THE

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DISTRICT COURT FOR ARIZONA.” Plaintiff asserts that his property was “lost two

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times and stol[]en,” and he seeks “restoration of the record if possible.” Plaintiff’s

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request is denied. The Court notes that Plaintiff has filed at least eight cases in this Court

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since 2010, all of which are closed.1 Plaintiff has not identified to which of those cases

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Neuendorf v. Unknown Party, et al., CV 10-124-PHX-RCB (DKD); Neuendorf v.
State of Arizona, et al., CV 10-607-PHX-RCB (DKD);Neuendorf v. Steinhillber, et al.,
CV 10-724-PHX-RCB (DKD); Neuendorf v. John C. Lincoln Medical, CV 10-752-PHX-3-

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his request applies, and he has not presented any compelling reason(s) for the court to

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comply with his request. As the Court noted in its Order dated November 15, 2010, the

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“Court is not in a position to act as a copy service for Plaintiff.” (Doc. 18.)

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IT IS ORDERED:

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(1)

Plaintiff’s “Motion to Compel to Set Aside Order” (Doc. 20) is denied

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(2)

This case must remain closed.

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Dated this 20th day of May, 2013.

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RCB (DKD); Neuendorf v. State of Arizona, et al., CV 11-332-PHX-RCB (DKD);
Neuendorf v. St. Joseph’s Hospital, et al., CV 12-2724-PHX-RCB (DKD); Neuendorf v.
State of Arizona, et al., CV 10-2238-PHX-RCB (DKD); and Neuendorf v. Ryan, et al.,
CV 12-0755-PHX-RCB (DKD).
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