In re Patrick Bulmer

Filing 35

ORDER signed by District Judge Troy L. Nunley on 3/3/2015 ORDERING 29 Appellant's Motion to Vacate is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL DEN BESTE,

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No. 2:13-cv-01893-TLN

Appellant,
ORDER DENYING APPELLANT’S
MOTION TO VACATE

v.
PATRICK BULMER ALSO KNOWN AS
CALIFORNIA RECEIVERSHIP
SERVICES,
Appellee.

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The Court has issued numerous orders directing Appellant Paul Beste (“Appellant”) to

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comply with the local rules governing the Eastern District of California as well as this Court’s

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orders. (See ECF Nos. 17, 18, 22 and 24.) On April 16, 2014, the Court ordered Appellant to file

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his opening brief within twenty-one (21) days. (Order, ECF No. 18.) Appellant complied but

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then failed to file his reply brief in accordance with the Court’s briefing schedule. Accordingly,

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the Court issued an order to show cause on June 23, 2014, as to why Appellant had not adhered to

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the Court’s order. (Min. Order, ECF No. 22.) On July, 7, 2014, Appellant responded and in turn

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the Court afforded Appellant one last opportunity to comply. Thus, on July 11, 2014, this Court

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ordered Appellant to file his reply brief with the District Court within fourteen (14) days.

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Appellant was further ordered to “notify the District Court in writing, within fourteen (14) days

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after service of Appellant’s reply brief, that the appeal is ready for oral argument.” (ECF No. 24.)
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In its Order, the Court warned Appellant that should he once again fail to file his brief that this

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matter would be dismissed. Appellant failed to adhere. Thus, the Court dismissed Appellant’s

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case on August 29, 2014. (See Am. Order, ECF No. 27.) Appellant filed the instant Motion to

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Vacate (ECF No. 29) on September 23, 2014.
Appellant’s motion asserts that this Court should vacate the judgment against him because

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“creditor Paul Den Best did, in fact, timely attempt to [file] and did have both documents

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presented to the Clerk of this Court, but the clerk refused to file both documents, which the Clerk

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is required to do even if the documents would have been defective in some manner.” (ECF No.

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29 at 3–4 (emphasis in original).) Appellant moves this Court to vacate under Federal Rule of

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Civil Procedure 60(a) and 60(b)(1) and (6). This Court addresses each section of Rule 60

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separately below.
Rule 60(a) states: “The court may correct a clerical mistake or a mistake arising from

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oversight or omission whenever one is found in a judgment, order, or other part of the record.

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The court may do so on motion or on its own, with or without notice.” The Court liberally

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construes Appellant’s motion as asserting that the clerk of court erred in not accepting his filing

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and thus this Court’s order should be vacated under Rule 60(a). Appellant’s reliance on this rule

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is mistaken because this rule applies to correct a clerical mistake within an order or judgment.

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See Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294, 1298 (9th Cir. 2014). The clerk of court’s

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alleged refusal to file Appellant’s brief does not fall within the purview of Rule 60(a). Thus, the

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Court turns to Rule 60(b).
Rule 60(b) states that “the court may relieve a party or its legal representative from a final

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judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or

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excusable neglect; . . . or (6) any other reason that justifies relief.” Thus, in order to prevail under

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Rule 60(b)(1), Appellant must establish that the Amended Order Dismissing Case and the

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Amended Judgment resulted from “mistake, inadvertence, surprise, or excusable neglect,” or the

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Court must find that another reason proffered by Appellant justifies relief. In addition, Appellant

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must satisfy Rule 60 (c) which requires a motion under Rule 60(b) be made “within a reasonable

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time.”
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First, the Court is not convinced as to the veracity of Appellant’s assertion that the clerk of

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court refused to file his briefs, especially in light of the numerous filings that Appellant has

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successfully filed with this Court. Furthermore, the Court finds that Appellant was given

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numerous notices of his failures to adhere to the Court’s scheduling order and thus his continued

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failure to adhere was not excusable neglect. Appellant has not provided this Court with any

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reason for his continued failure to prosecute his case that would justify the relief sought.

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Moreover, the Court finds it suspicious and unreasonable that Appellant waited over a month

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after the Court’s judgment to respond by filing his motion to vacate and to suddenly produce his

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reply brief as an exhibit to his motion. In sum, the Court finds that Appellant has not met his

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burden under Rule 60 and Appellant’s Motion to Vacate (ECF No. 29) is DENIED.
IT IS SO ORDERED.
Dated: March 3, 2015

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Troy L. Nunley
United States District Judge

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