Vanaman v. Molinar et al

Filing 180

ORDER DENYING Plaintiff's 177 Motion to Set Aside Judgment. This case is to remain closed. Signed by Judge John C Hinderaker on 3/21/23. (BAC)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leslie Grey Vanaman,

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Plaintiff,

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v.

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Unknown Molinar, et al.,

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No. CV-17-00222-TUC-JCH
ORDER

Defendants.

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Before the Court is pro se Plaintiff's "Motion for Relief from Judgment" (Doc.

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177). Plaintiff moves under Federal Rules of Civil Procedure 60(b)(6), (d)(1), and (d)(3)

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to set aside judgment and hold a new trial. 1 Id. at 1. Plaintiff alleges Defendants

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committed a fraud on the Court by rescinding a policy Plaintiff challenged, then

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reinstating it after the Court dismissed Plaintiff's challenge as moot. Id. at 9. Plaintiff

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alleges he was prejudiced because he never had a full and fair opportunity to litigate his

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claims. Id. at 10. Defendants respond that they have not reinstated the same policy, and

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that Plaintiff's claims are precluded in any event because the Court also based its decision

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in a consideration of the merits. Doc. 178 at 7, 8. Plaintiff replied, Doc. 179, and the

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Motion is ready for judgment. The Court will deny Plaintiff's Motion for those reasons.

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I.

Legal Standard

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Rules 60(b)(1)–(3) provide that "the court may relieve a party … from a final

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judgment, order, or proceeding for … (1) mistake … (2) newly discovered evidence …

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The underlying action was disposed at summary judgment, not trial. See Doc. 162.

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[or] (3) fraud …, misrepresentation, or misconduct by an opposing party." A motion

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under Rule 60(b)(1)–(3) "must be made within … a year after the entry of the judgment

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or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1). This time limit is

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inflexible. See Fed. R. Civ. P. 6(b)(2) ("A court must not extend the time to act under

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Rule[] … 60(b).").

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Rule 60(b)(6) provides relief "for … any other reason [beyond those specified in

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60(b)(1)–(5)] that justifies relief." The moving party "must show extraordinary

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circumstances justifying the reopening of a final judgment." Wood v. Ryan, 759 F.3d

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1117, 1120 (9th Cir. 2014) (quotations omitted). The district court has discretion to

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determine "whether, in light of all the circumstances, the interests of justice require" the

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relief. United States v. Sparks, 685 F.2d 1128, 1130–31 (9th Cir. 1982).

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Rule 60(d)(1) preserves the right of the district court to "entertain an independent

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action to relieve a party from a judgment, order, or proceeding." Fed. R. Civ. P. 60(d)(1).

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The independent action is a new action that is filed when "the right to make a motion is

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lost by the expiration of the time limits fixed in these rules." United States v. Beggerly,

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524 U.S. 38, 45 (1998). Independent actions are disfavored when the issue "is a failure to

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furnish relevant information that would at best form the basis for a Rule 60(b)(3) motion,

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[because] the strict 1-year time limit on such motions would be set at naught." Id. at 46.

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Instead, they should "be reserved for those cases of injustices which, in certain instances,

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are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine

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of res judicata." Id. (quotations omitted).

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Rule 60(d)(3) preserves the right of the district court to "set aside a judgment for

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fraud on the court." Fed. R. Civ. P. 60(d)(3). Fraud on the court embraces "only that

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species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated

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by officers of the court so that the judicial machinery cannot perform in the usual manner

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its impartial task of adjudging cases that are presented for adjudication." United States v.

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Est. of Stonehill, 660 F.3d 415, 444 (9th Cir. 2011). Nondisclosure of evidence and

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perjury by a party are not generally considered to be fraud on the court. Id. The moving
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party must show "by clear and convincing evidence … more than perjury or

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nondisclosure of evidence, unless that perjury or nondisclosure was so fundamental that it

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undermined the workings of the adversary process itself." Id. at 445.

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I.

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Analysis
A. Plaintiff's claims are precluded by the Court's 2021 judgment.

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Plaintiff challenges the Court's order filed January 29, 2021. Doc. 177 at 9

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(referring to Doc. 162). Plaintiff alleges the Court granted summary judgment for

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Defendants based on mootness because the contested policy had been terminated. Doc.

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177 at 2. Plaintiff also alleges that as "a result of mootness, the [Court] did not undertake

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a § 706(2)(A) analysis[.]" Id. at 12. Plaintiff goes on to outline arguments he made before

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filing for summary judgment, and in a related action and on appeal. Id. at 12–15. Plaintiff

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alleges the policy has been reinstated, and a trial is needed because he was previously

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"unable to fully and fairly present his complaint." Id. at 20.

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Plaintiff is mistaken. The Court's 2021 judgment granted summary judgment for

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Defendants based on (1) mootness (Doc. 162 at 12–14), and (2) the merits of Plaintiff's

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claims (Doc. 162 at 14–22). The Ninth Circuit affirmed on both bases. Doc. 175-1.

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Plaintiff has had "a full and fair opportunity to litigate the merits[.]" Littlejohn v. United

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States, 321 F.3d 915, 923 (9th Cir. 2003). Even if Defendants had reinstated the policy at

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issue, further litigation of Plaintiff's claims is precluded by the Court's 2021 judgment.

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In his Reply, Plaintiff acknowledges that the Court ruled on the merits but asserts

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that "a constitutional analysis under Turner v. Safley fails because [the challenged policy]

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… falls short of APA requirements under 5 U.S.C. § 706(2)(A)." Doc. 179 at 6. Plaintiff's

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citations to motions he filed before summary judgment, related actions, and his

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arguments on appeal do not establish that the Court should have considered them in its

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2021 Order. Plaintiff's argument at summary judgment was under Turner, and the Court

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applied the Turner factors to his claim. Compare Doc. 144, with Doc. 162. The Ninth

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Circuit affirmed on that basis in addition to mootness. To the extent Plaintiff seeks to

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relitigate his motion for summary judgment with new arguments that were available to
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him then, he is precluded from doing so.
B. Plaintiff is not entitled to relief under Rule 60.

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Plaintiff is time-barred from moving Rules 60(b)(1)–(3) because the judgment he

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seeks to set aside was filed more than a year before his Motion. Plaintiff challenges the

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Court's order filed January 29, 2021. Doc. 177 at 9 (referring to Doc. 162). The new

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policy began May 13, 2021. Doc. 178-1 at 7. Plaintiff was notified that one of his

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incoming publications was rejected under the new policy on November 30, 2022. Doc.

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177 at 19. 2 Plaintiff filed the current Motion on February 13, 2023. Doc. 177 at 1. Even if

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equitable tolling were available, Plaintiff fails to provide any evidence that he could not

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have filed his Motion earlier than January 29, 2021. The Court also notes that Plaintiff

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filed his Motion shortly after his appeal was denied. See generally, e.g., Pursley v. Estep,

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2007 WL 4322330 at *2 (D. Colo. Dec. 7, 2007) ("Here, plaintiff waited nearly nine

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months after this Court's Order, and until after his appeal had already been denied by the

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Tenth Circuit, before filing his Rule 60(b) motion. The filing is untimely."). Plaintiff

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cannot seek relief from the Court's judgment for reasons of mistake, newly discovered

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evidence, or fraud by the opposing party.

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Plaintiff's arguments under Rule 60(b)(6) are unpersuasive. Plaintiff asserts that

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the Court can reconsider a final judgment under Rule 60(b)(3) even when time-barred

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because Rule 60(b)(6) provides a catchall for relief for any other reason that justifies

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relief. Doc. 177 at 14. But the Rule 60(b)(6) catchall does not revive Rules 60(b)(1)–(3)

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because Rule 60(b)(6) "is available only when Rules 60(b)(1) through (b)(5) are

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inapplicable." Kemp v. United States, 142 S. Ct. 1856, 1861 (2022). Plaintiff also fails to

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establish extraordinary circumstances under Rule 60(b)(6). Plaintiff alleges Defendants

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sought to evade the Court's review by first terminating the policy and then reinstating it

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shortly after the Court's decision was affirmed. Doc. 177 at 20. But Defendants show that

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only the title of the policy ("TCX 5324.10B") was identically reinstated—the new policy

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In his Reply, Plaintiff asserts that he “did not actually receive [the response dated
November 30, 2022] until after December 1, 2022.” Doc. 179 at 7 n. 3. Plaintiff’s
allegation, even if credited, does not change the Court’s analysis.
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contains elements of the former policy but is not identical. Compare Doc. 177 at 37–43

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(providing the rescinded policy), with Doc. 178-1 at 7–14 (providing the reinstated

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policy). Those elements of the new policy that are identical were analyzed in the Court's

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2021 judgment. Compare, e.g., Doc. 178-1 at 10–11, with Doc. 162 at 5–6, 14–22.

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Plaintiff's Motion therefore fails to demonstrate an extraordinary circumstance warranting

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relief under Rule 60(b)(6).

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Plaintiff's arguments under Rules 60(d)(1) and 60(d)(3) are similarly unpersuasive.

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Plaintiff has not instituted a new action such that Rule 60(d)(1) applies. Even if he had,

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Plaintiff has not shown that the reinstated policy is identical with the old policy, and to

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the extent it is identical the Court has already determined the policy is constitutional.

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Plaintiff's Motion therefore fails to demonstrate a grave miscarriage of justice or fraud on

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the court warranting departure from res judicata principles.

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II.

Order

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For the reasons above,

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IT IS ORDERED DENYING Plaintiff's Motion (Doc. 177). This case is to

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remain closed.
Dated this 21st day of March, 2023.

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