Foss v. Rowen

Filing 24

ORDER signed by District Judge Troy L. Nunley on 11/02/2016 DENYING Plaintiff's 23 Motion for Reconsideration. (Butolph, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND CHRISTIAN FOSS,

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Plaintiff,

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v.

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TODD ROWEN,

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No. 2:15-cv-00686-TLN-DB

ORDER DENYING PLAINTIFF’S
REQUEST FOR RECONSIDERATION
Defendant.

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Plaintiff Raymond Foss (“Plaintiff”), proceeding pro se, filed the instant action against

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Todd Rowen on March 26, 2015. (Compl., ECF No. 1.) On January 22, 2016, Defendant Todd

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Rowen (“Defendant”) filed a Motion to Dismiss. (ECF No. 15.) In response to Defendant’s

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motion, Plaintiff filed a Motion for a More Definite Statement on February 12, 2016, requesting

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Defendant state the accrual date of the action. (ECF No. 17.) Plaintiff also asked the Magistrate

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Judge to strike documents the Defendant had requested the court judicially notice. Defendant

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construed Plaintiff’s motion as an opposition to Defendant’s motion to dismiss and filed a reply

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brief on February 26, 2016. (ECF No. 18.) However, on March 4, 2016, Plaintiff filed a response

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to Defendant’s reply explaining that his filing was a separate motion and not an opposition. (ECF

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No. 20.) Magistrate Judge Deborah Barnes issued an order on October 6, 2016, denying

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Plaintiff’s motion for a more definite statement and request to strike the judicially noticed

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documents. (ECF No. 20.) Plaintiff has filed a Motion for Reconsideration. (ECF No. 22.)
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Federal Rule of Civil Procedure 60(b) (“Rule 60”) states as follows:

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On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or

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(6) any other reason that justifies relief.

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Therefore, for relief to be afforded, Plaintiff must meet one of Rule 60(b)’s criteria for
relief.
Plaintiff does not argue in his moving papers that he meets the requirements under Rule

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60(b). Instead, Plaintiff focuses on the arguments he raised in his motion before Magistrate Judge

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Barnes and asserts why Magistrate Judge Barnes was wrong in her analysis of the law. Nothing

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in Plaintiff’s arguments could be construed as asserting newly discovered evidence, fraud, a void

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judgment, or that the judgment has been satisfied. Thus, the Court examines whether Plaintiff

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meets the requirements of mistake, inadvertence, surprise or excusable neglect under Rule

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60(b)(1), or any other reason that justifies relief under Rule 60(b)(6).

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When a motion for reconsideration is construed as a Rule 60(b)(1) motion, the party must

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show that the court committed a specific error. Saldano v. U.S. Postal Services, No. 90-56156,

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1992 WL 158180, at *2 (9th Cir. July 9, 1992). Plaintiff does not make any allegations or show

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proof of any specific error or mistake. Plaintiff simply disagrees with the Magistrate Judge’s

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findings of law. Thus, Plaintiff is not entitled to relief under Rule 60(b)(1).

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Turning to Rule 60(b)(6), Plaintiff must show that “extraordinary circumstances” exist to
justify relief from judgment. Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989). As noted
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above, Plaintiff seeks relief because he disagrees with the Magistrate Judge’s findings of law.

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However, the magistrate’s ruling that a Motion to Dismiss is not a “pleading” under Rule 12(e)

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such that a motion for more definite statement is inappropriate is a settled rule of law.

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Additionally, the magistrate’s conclusion that Rule 12(f) does not permit striking accompanying

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documents is also well settled. Therefore, Plaintiff cannot demonstrate an extraordinary

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circumstance that would warrant relief from judgment under Rule 60(b)(6).

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Plaintiff has not met his burden and cannot be afforded relief under Rule 60(b). As such,
Plaintiff’s motion (ECF No. 23) is DENIED.
IT IS SO ORDERED.

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Dated: November 2, 2016

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Troy L. Nunley
United States District Judge

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