Burgess v. eBay, Inc. et al

Filing 80

ORDER by Judge ARMSTRONG denying 74 Motion to Set Aside Judgment (lrc, COURT STAFF) (Filed on 7/29/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALBERT C. BURGESS, JR.,
Plaintiff,

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ORDER DENYING MOTION TO
SET ASIDE JUDGMENT

v.

EBAY, INC., PAYPAL, INC., GOOGLE, INC.,
VISA INTERNATIONAL, INC.,
7 MASTERCARD, INC., CHARLOTTE
OBSERVER PUBLISHING CO., INC.,
8 DANNY L. DURHAM,
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No. C 11-01898 SBA (PR)

(Docket No. 74)

Defendants.
______________________________________/

United States District Court
For the Northern District of California

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This is a pro se civil rights complaint filed by Plaintiff Albert C. Burgess, Jr., an
inmate incarcerated in the Low Security Correctional Institution in Butner, North Carolina.

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On December 21, 2012, the Court issued an Order granting Defendants’ motion to dismiss

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Plaintiff’s First Amended Complaint and granted Plaintiff twenty-one days from the date of

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the Order to file a Second Amended Complaint. Dkt. 62. In the Order, the Court warned

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Plaintiff that “[T]he failure to file a Second Amended Complaint within the timeframe

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specified by the Court will result in the dismissal of the action.” Id. at 10. Plaintiff did not

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file a Second Amended Complaint and, in an Order dated February 20, 2013, the Court

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dismissed the action pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply

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with an Order of the Court. Dkt. 72. Plaintiff now moves to set aside the judgment under

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Federal Rule of Civil Procedure 60(a), (b). Dkt. 74.

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A motion for reconsideration of a final judgment is appropriately brought under

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Federal Rule of Civil Procedure 59(e) or 60(b). Backlund v. Barnhart, 778 F.2d 1386, 1388

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(9th Cir. 1985). A motion under Rule 60(b) may be granted “if the moving party can show:

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(1) mistake, surprise or excusable neglect; (2) newly discovered evidence; (3) fraud or

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misconduct; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other

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reason justifying relief.” Id.

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Ostensibly relying on Rule 60(b)(1), Plaintiff argues that the Court mistakenly found

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that this action should be dismissed based on his failure to comply with its December 21,

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2012 Order to file a Second Amended Complaint. Notwithstanding the fact that the Second

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Amended Complaint does not appear on the docket, Plaintiff argues that he “did in fact

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submit the Second Amended Complaint.” Dkt. 74 at 1. Plaintiff points out that, on February

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19, 2013, one of the Defendants, the Charlotte Observer Publishing Co., Inc. (“Charlotte

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Observer”), filed “an extensive reply to the Second Amended Complaint submitted by the

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Plaintiff.” Id. Plaintiff argues that the Charlotte Observer could only have received notice of

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the Second Amended Complaint from the Court’s electronic docket because he did not send

United States District Court
For the Northern District of California

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a hard copy to this Defendant. Id. at 1-2.

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Plaintiff’s arguments are without merit. The Charlotte Observer’s filing -- which is a

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motion to dismiss -- was not filed in response to a Second Amended Complaint. Dkt. 68. It

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was directed at Plaintiff’s “purported ” Second Amended Complaint. Id. at 7. In fact, the

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Charlotte Observer points out that Plaintiff did not file a Second Amended Complaint in

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compliance with the Court’s December 21, 2012 Order and argues that this action should be

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dismissed, stating:

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This Court, in two subsequent orders, gave plaintiff until February 8,
2013 to file a Second Amended Complaint. Plaintiff has not done so. Rather,
on February 4, 2013 he filed what he called a “Reply to Order of This Court;
Motion to Add Additional Defendants.” (Document 67.) This pleading is not
a Second Amended Complaint and doesn’t comply with this Court’s
[December 21, 2012] Order. It is, rather, a rambling narrative in which
plaintiff primarily blames other people for his lifetime of child molestation.
One thing plaintiff does not do, however, is to come anywhere close to stating
a claim against The Observer.
Dkt. 68 at 9.
Therefore, Plaintiff has failed to submit any evidence supporting his contention that

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the Court mistakenly dismissed this action upon finding that he failed to comply with the

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Court’s December 21, 2012 Order to file a Second Amended Complaint. Furthermore,

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Plaintiff fails to present evidence or argument supporting any other factor that would warrant

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setting aside the judgment under Rule 60. Accordingly, Plaintiff’s motion to set aside the

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judgment (Dkt. 74) is DENIED.
CONCLUSION

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In light of the foregoing, the Court orders as follows:

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Plaintiff’s motion to set aside the judgment (Dkt. 74) is DENIED.

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2.

This Order terminates Docket no. 74.

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IT IS SO ORDERED.

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DATED: 7/26/13

SAUNDRA BROWN ARMSTRONG
United States District Judge

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ALBERT C. BURGESS, JR.,
Case Number: CV11-01898 SBA
Plaintiff,

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CERTIFICATE OF SERVICE
v.
EBAY INC. et al,
Defendant.

/

United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 29, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Albert C. Burgess 88539-071
Federal Correctional Institution 2
P.O. Box 1500
Butner, NC 27509
Danny L Durham
2350 Washington Road
Augusta, GA 30904
Dated: July 29, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\CR.11\Burgess1898 Deny Recon.wpd

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