Willard v. Waddle

Filing 37

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion to Reopen Case and for Copies be denied 33 , 34 signed by Magistrate Judge Gary S. Austin on 4/1/2020. Referred to Judge Dale A. Drozd; Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSHUA A. WILLARD,

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Plaintiff,

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v.

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C. WADDLE, et al.,

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Defendants.

1:17-cv-01425-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTIONS TO REOPEN CASE, AND FOR
COPIES, BE DENIED
(ECF Nos. 33, 34.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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I.

BACKGROUND

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Joshua A. Willard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983 against defendant C. Waddle for

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retaliation in violation of the First Amendment.

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This case was voluntarily dismissed by stipulation of the parties. Plaintiff now seeks to

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re-open it. On November 8, 2019, a settlement conference was held before Magistrate Judge

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Barbara A. McAuliffe and the case settled. (ECF No. 30.) On December 9, 2019, the parties

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filed a stipulation for voluntary dismissal, with prejudice. (ECF No. 31.) On December 11,

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2019, the court directed the clerk to close the case. (ECF No. 21.)

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On December 19, 2019, Plaintiff filed a motion to reopen the case under Rule 60(b)(1),

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and on December 23, 2019, Plaintiff filed a motion for Defendant to provide him with copies of
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the parties’ settlement agreement and stipulation for voluntary dismissal. (ECF Nos. 33, 34). On

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February 25, 2020, defendant Waddle filed a response to Plaintiff’s motions. (ECF No. 36.)

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Plaintiff has not filed a reply. Plaintiff’s motions are now before the court. L.R. 230(l).

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II.

MOTION TO REOPEN CASE UNDER FED. R. CIV. P. RULE 60(b)(1)

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“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of

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his case, under a limited set of circumstances . . . .” Gonzalez v. Crosby, 545 U.S. 524, 528

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(2005). Rule 60(b) relief is extraordinary and will not apply to a showing which does not justify

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its application. See Stevens v. ITT Sys., Inc., 868 F.2d 1040, 1041 n.1 (9th Cir. 1989). “Motions

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for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) are committed to the

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sound discretion of the trial judge.” Blair v. Shanahan, 38 F.3d 1514, 1518 (9th Cir. 1994)

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(citation omitted).

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Rule 60(b) provides for relief from a judgment or order when the moving party can show:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that

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could not have been discovered by due diligence before the court’s decision; (3) fraud,

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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) satisfaction

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of the judgment; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b); School Dist.

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1J, Multnomah Cnty. v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Whether the court

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should grant relief “depends on at least four factors: (1) the danger of prejudice to the opposing

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party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for

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the delay; and (4) whether the movant acted in good faith.” Bateman v. United States Postal

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Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (adopting standard to determine excusable neglect

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as set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)).

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Thus, a district court may grant a motion for relief from judgment under Rule 60(b)(1) if the

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moving party can show mistake, surprise, or excusable neglect. See Fed. R. Civ. P. 60(b)(1);

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Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985).

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“A motion under Rule 60(b) must be made within a reasonable time – and for reasons (1),

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(2), and (3) no more than a year after the entry of judgment or order” from which the moving

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party seeks relief. Fed. R. Civ. P. 60(c)(1). As noted above, the parties’ stipulation of voluntary
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dismissal was filed on December 9, 2019. Therefore, to the extent Plaintiff's December 19, 2019

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motion to reopen seeks to set aside the December 9, 2019 dismissal pursuant to Rule 60(b)(1), it

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is timely.

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III.

PLAINTIFF’S MOTIONS

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Plaintiff moves the court to re-open this case under Rule 60 on the ground that it is not

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following the terms placed on the record on November 8, 2019 at the settlement conference.

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Plaintiff reports that Defendant and her lawyers have refused to send him a copy of the settlement

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agreement signed by all parties, or a copy of the voluntary dismissal of this case. Plaintiff also

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asserts that Defendant has refused to acknowledge receipt of Plaintiff’s Payee Data Form with

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Plaintiff’s Social Security number, which Defendant needed to provide Plaintiff the settlement

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funds. Plaintiff requests Defendant to provide him with copies of the settlement agreement and

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the voluntary dismissal.

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IV.

DEFENDANT’S RESPONSE

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In response, counsel for Defendant asserts that she did not receive a fully executed copy

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of the settlement agreement until January 7, 2020, which contained the signature of a

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representative from the Office of Legal Affairs for the California Department of Corrections and

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Rehabilitation. Defendant asserts that on or about January 7, 2020, a copy of the fully executed

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settlement agreement, the stipulation of voluntary dismissal, and the payee data form were sent

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to Plaintiff.

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V.

CONCLUSION

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Plaintiff has not disputed Defendant’s assertion that Defendant has now provided Plaintiff

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with the documents he requests. In fact, Plaintiff has not filed any reply to Defendant’s response

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causing an inference that Plaintiff no longer wishes to re-open this case for the reasons he stated.

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In such a case, Plaintiff’s motions are moot.

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Moreover, Plaintiff has not supported his motion with a basis to reopen this case. Plaintiff

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has not shown any mistake, surprise, or excusable neglect to support Plaintiff’s motion to reopen

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the case. Defendant provides a reasonable explanation why she waited to provide Plaintiff with

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the documents he sought.
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Therefore, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to

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reopen this case, filed on December 19, 2019, and motion for copies, filed on December 23, 2019,

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are DENIED.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after the date of service of these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

April 1, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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