Hanna v. County of Mariposa et al

Filing 22

ORDER setting evidentiary hearing on March 13, 2014 at 10:00 am before Magistrate Judge Stanley A. Boone. Signed by Magistrate Judge Stanley A. Boone on 1/13/2014. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD CHARLES HANNA,

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Case No. 1:12-cv-01885-AWI-SAB

Plaintiff,
ORDER SETTING EVIDENTIARY HEARING

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v.
COUNTY OF MARIPOSA, et al.,

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Defendants.

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On November 12, 2013, District Judge Anthony W. Ishii issued an order relating this

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action to Hanna v. Mariposa County Sheriff Dept., No. 1:12-cv-00501-AWI-SAB (E.D. Cal.),

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and the action was referred to the undersigned to determine if the dismissal of this action with

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prejudice should be set aside. On November 14, 2013, the undersigned issued an order requiring

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Plaintiff’s counsel, Eugene Action, to file a response to Plaintiff’s allegation that this action was

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dismissed without his consent or permission. Mr. Action filed a response on November 27, 2013.

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Plaintiff filed a reply on December 6, 2013. On December 16, 2013, Mr. Action filed a response

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to the Court’s request for a copy of the power of attorney in place at the time of the dismissal of

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the action.

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Having reviewed the declarations of the parties, the dispositive issue in this matter is

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whether Plaintiff was informed of and consented to the dismissal of Hanna v. County of

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Mariposa, 1:12-cv-01885-AWI-SAB. Mr. Action and Ms. Ritter submit affidavits stating that the
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settlement of the action was discussed with Plaintiff who consented to the dismissal. Plaintiff

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submits declarations stating that he did not consent to the dismissal. Therefore, the Court shall

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hold an evidentiary hearing to determine whether the dismissal of this action should be set aside

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under Fed. R. Civ. P. 60(b) which provides relief from final judgment for numerous reasons,

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including as relevant here, mistake, surprise or any other reason that justifies relief.

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Plaintiff is advised that, as the party seeking relief from the judgment, he has the burden

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of demonstrating that such relief is appropriate. Bailey v. U.S., 250 F.R.D. 446, 448 (D. Ariz.

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2008). Therefore, the burden will be on Plaintiff to present evidence during the hearing to prove

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his claim that he was unaware of and did not consent to the dismissal of this action. This includes

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the presentation of any documentary evidence, as well as securing the attendance of witnesses,

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either voluntarily or by subpoena, to testify on his behalf.

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Mr. Action is ordered to attend the hearing as he will be required to testify to the events

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that led to the dismissal of this action. Defendants and Mr. Action may also present evidence at

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the hearing in support of the voluntary dismissal of this action and are required to take steps

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necessary to obtain the attendance of such witnesses.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

An evidentiary hearing to determine if Plaintiff is entitled to relief from the entry

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of judgment in this action is set before the undersigned on March 13, 2014, at

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10:00 a.m. in Courtroom 9; and

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2.

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The parties shall file and serve their witness and exhibit lists on or before March 3,
2014.

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IT IS SO ORDERED.
Dated:

January 13, 2014
UNITED STATES MAGISTRATE JUDGE

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