Johnson v. Brady et al

Filing 105

ORDER - IT IS ORDERED that Plaintiff Derrick Johnson's Rule 60 motion (Doc. 101 ) is denied. (See document for complete details). Signed by Judge David G Campbell on 4/2/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derrick Johnson, et al.,

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Plaintiff,

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ORDER

v.

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No. CV-14-01875-PHX-DGC

Robert Brady, et al.,

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Defendants.

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Plaintiff Derrick Johnson has filed a Rule 60 motion to vacate three orders entered

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in this case. Doc. 101. Defendants responded (Docs. 103, 104), and Plaintiff did not

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reply. No party requests oral argument. The Court will deny Plaintiff’s motion.

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I.

Background.

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On August 22, 2014, Plaintiff filed a pro se complaint against various government

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employees and municipalities (“Defendants”). Doc. 1. Plaintiff filed an application to

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proceed in forma pauperis (Doc. 2) and a Rule 4(c)(3) motion for service by a U.S.

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marshal (Doc. 4). The Court granted the application and motion. Doc. 8. The Court

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ordered the Clerk to deliver service packets to Plaintiff and directed Plaintiff to complete

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and return them to the Clerk so that the U.S. Marshal could execute service. Doc. 8

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at 1-2. When Plaintiff returned the packets, the Clerk forwarded them to the Marshal for

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service on Defendants. See Doc. 101.

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Defendants filed three motions to dismiss.

Docs. 11, 20, 22.

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January 28, 2015, the Court granted two of the motions in full and one in part. Doc. 37

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(“January 28 order”). Plaintiff filed an amended complaint (Doc. 44), and Defendants

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again filed three motions to dismiss (Docs. 49, 50, 51). On June 17, 2015, the Court

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granted two of the motions in full and one in part. Doc. 65 (“June 17 order”). The

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remaining Defendants then filed a motion for summary judgment. Doc. 78. Plaintiff did

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not respond. Doc. 83; Doc. 89 at 2. On February 16, 2016, the Court dismissed “this

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action without prejudice for Plaintiff’s failure to prosecute, his failure to follow the

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applicable rules, and his failure to comply with the Court’s orders.”

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(“February 16 order”).

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Id. at 3

Plaintiff now moves for Rule 60 relief, alleging that a procedural mistake requires

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the Court to vacate the January 28, June 17, and February 16 orders. Doc. 101.

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II.

Analysis.

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Plaintiff must show that Rule 60 relief is warranted. Fed. R. Civ. P. 60. Plaintiff

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relies on an alleged violation of Rule 4(b) to justify vacating the three orders. Doc. 101.

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Plaintiff argues that Rule 4(b) required the Clerk to “sign, seal, and issue” the summons.

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Id. at 2. The Clerk’s failure to do so, Plaintiff argues, is an error that requires the Court

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to vacate its prior orders. Id.

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Rule 4(b) provides that “the plaintiff may present a summons to the clerk for

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signature and seal. If the summons is properly completed, the clerk must sign, seal, and

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issue it to the plaintiff for service on the defendant.” Fed. R. Civ. P. 4(b) (emphasis

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added). But Plaintiff elected not to serve Defendants himself. Plaintiff instead requested

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that “service . . . be made by a U.S. Marshal, Deputy Marshal, or someone specially

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appointed by the Court.” Doc. 4; see also Fed. R. Civ. P. 4(c)(3). The Court granted

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Plaintiff’s motion. Doc. 8. Returning service packets to Plaintiff would be inconsistent

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with his own request that someone else serve them. Further, the alleged noncompliance

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has had no effect on this case. The Court did not rely on Rule 4 to issue the three orders

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Plaintiff seeks to vacate. Docs. 37, 65, 89.

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Plaintiff cites Rules 5(d)(2), 6(c)(1)(C), 7(b), and 78(b) for the proposition that

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they “provide more grounds for this application and motion.”

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Plaintiff does not explain, and the Court cannot discern, how these rules support his

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motion.

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Doc. 101 at 2.

But

IT IS ORDERED that Plaintiff Derrick Johnson’s Rule 60 motion (Doc. 101) is
denied.
Dated this 2nd day of April, 2018.

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