Bryant v. U.S. Bank et al

Filing 12

ORDER ON MOTION FOR RELIEF FROM JUDGMENT, signed by District Judge Anthony W. Ishii on 10/12/2017. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY J. BRYANT,

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CASE NO. 1:16-CV-1688 AWI SKO
Plaintiff
ORDER ON MOTION FOR RELIEF
FROM JUDGMENT

v.
U.S. BANK, et al.,

(Doc. No. 10)
Defendants

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On August 25, 2017, the Court adopted a Findings and Recommendation (“F&R”) that

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recommended dismissing this case with prejudice for failing to comply with court orders. See

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Doc. Nos. 7, 8. The case was closed and judgement was entered on August 25, 2017. See Doc.

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No. 9. Plaintiff’s amended complaint had been dismissed and Plaintiff was ordered to file an

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amended complaint. See Doc. No. 5. Plaintiff did not do so and did not respond to an order to

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show cause why the case should not be dismissed. See Doc. No. 6. The F&R followed and

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Plaintiff filed no objections. See Doc. No. 7. Plaintiff was and is appearing pro se.

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On September 11, 2017, Plaintiff filed a complaint against the Defendants and the Wolf

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Firm; the complaint was filed in a new case assigned to District Judge Drozd. See Doc. No. 1 in

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E.D. of Cal. Case No. 1:17-cv-1218 DAD BAM. On October 6, 2017, Judge Drozd issued an

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order that construed the complaint pending before him as a motion for relief from judgment in this

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case. See Doc. No. 11. Therefore, now pending before the undersigned is Plaintiff’s motion for

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relief from judgment. See Doc. No. 10.

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Plaintiff’s motion is in the form of a complaint that deals with conduct surrounding a

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foreclosure of real property. See id. Exhibits are attached, including a deed of trust, a grant deed,

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and a trustee’s deed upon sale. See id. The portion of the motion/complaint that deals with

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reinstatement of this case is the penultimate page. See id. This page is handwritten and reads in

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relevant part: “I am asking to reinstate Federal Case (Bryant v. U.S. Bank) or accept as new case.

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Jan 2017, I was illegally jailed for 13 days, ‘no charges filed,’ and I am pursuing legal action in

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Federal Court. I was forced into hiding January 2017 to June 2017. New evidence of fraud U.S.

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Bank not ‘holder in due course.” Id. The Court views these allegations as implicating two

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subparagraphs of Federal Rule of Civil Procedure 60(b).

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First, Plaintiff refers to “new evidence.” Rule 60(b)(2) permits relief from a final judgment

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based on “newly discovered evidence.” See Fed. R. Civ. P. 60(b)(2). To obtain relief under Rule

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60(b)(2), “the movant must show the evidence (1) existed at the time of the trial, (2) could not

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have been discovered through due diligence, and (3) was of such magnitude that production of it

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earlier would have been likely to change the disposition of the case.” Jones v. Aero/Chem Corp.,

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921 F.2d 875, 878 (9th Cir. 1990); Coastal Transfer Co. v. Toyota Motor Sales, 833 F.2d 208, 211

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(9th Cir. 1987). Evidence is not newly discovered if it was already in the party’s possession or

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could have been discovered with reasonable diligence. Wallis v. J.R. Simplot Co., 26 F.3d 885,

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892 (9th Cir. 1994); Coastal Transfer Co., 833 F.2d at 212. However, Plaintiff does not

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adequately describe the new evidence, explain when she discovered the evidence, why the

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evidence could not have been discovered sooner, or how the evidence would have changed the

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disposition of the case. See Jones, 921 F.2d at 878. The last point is especially powerful. As

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discussed above, this case was dismissed for failure to obey a court order, and that order was for

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Plaintiff to file an amended complaint. The discovery of unknown evidence does not speak to

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Plaintiff’s failure to obey court orders. Plaintiff has not shown that relief is available under Rule

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60(b)(2).

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Second, Plaintiff states that she was in hiding from January 2017 to June 2017. This

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arguably implicates Rule 60(b)(6), which permits a court to “relieve a party . . . from a final

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judgment, order, or proceeding for . . . any other reason that justifies relief.” Fed. R. Civ. P.

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60(b)(6). Rule 60(b)(6) is a catchall provision that applies only when the reason for granting relief

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is not covered by any of the other reasons set forth in Rule 60. United States v. Washington, 394

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F.3d 1152, 1157 (9th Cir. 2005). “Judgments are not often set aside under Rule 60(b)(6).”
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Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006). “This rule has been

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used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only

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where extraordinary circumstances prevented a party from taking timely action to prevent or

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correct an erroneous judgment.” Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996,

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1005 (9th Cir. 2007); Washington, 394 F.2d at 1157. A party who moves for Rule 60(b)(6) relief

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“must demonstrate both injury and circumstances beyond his control that prevented him from

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proceeding with . . . the action in a proper fashion.” Latshaw, 452 F.3d at 1103; Washington, 394

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F.3d at 1157. Here, Plaintiff does not explain how, where, or why she was in hiding, and the

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statement by itself seems fanciful. More importantly, there is no explanation of how events from

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January 2017 to June 2017 prevented Plaintiff from obeying court orders or prosecuting this case.

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The order to show cause was issued on July 5, 2017, and the F&R was issued on August 3, 2017;

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both dates that fall outside the January 2017 to June 2017 timeframe. See Doc. Nos. 6, 7.

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Plaintiff has not shown that Rule 60(b)(6) applies to this case.

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No other bases for relief from judgment are apparent. Therefore, the Court will deny
Plaintiff’s motion to reinstate.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for relief from judgment (Doc. No. 10) is DENIED; and

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2.

This case remains CLOSED.

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IT IS SO ORDERED.
Dated: October 12, 2017
SENIOR DISTRICT JUDGE

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