Wallace v. Busch Entertainment Corp et al

Filing 74

ORDER Denying 66 Plaintiff's Motion for Reconsideration. The Court DENIES his motion for reconsideration in its entirety. The Court also DENIES AS MOOT Plaintiffs request to set a trial date. Signed by Judge M. James Lorenz on 1/25/2013. (All non-registered users served via U.S. Mail Service. Copy sent to address on file and address listed as return address on recent filing)(sjt) (jrl).

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13
14
15
16

JOHN B. WALLACE,
Plaintiff,
v.

BUSCH ENTERTAINMENT CORP., et
17 al.,
18
19

Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 09-cv-2785-L(RBB)
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
[DOC. 66]

On December 27, 2012, Plaintiff John B. Wallace, a licensed attorney proceeding pro se,

20 filed this motion seeking a order from the Court (1) relieving Plaintiff from the judgment of
21 dismissal, (2) vacating judgment, and (3) setting a trial. Plaintiff brings this motion in response
22 to the dismissal of this action for want of prosecution under Civil Local Rule 41.1 on October
23 29, 2012. The Court issued a Notice of Hearing for Dismissal for Want of Prosecution,
24 following a six-month period of no docket activity in this action. Consequently, on November
25 11, 2012, the Court entered judgment and dismissal without prejudice. Defendant Seaworld
26 Parks & Entertainment, LLC opposes the motion.
27 //
28 //
09cv2785

1

The Court found this motion suitable for determination on the papers submitted and

2 without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 68.) For the following reasons, the Court
3 DENIES Plaintiff’s motion for reconsideration. (Doc. 66.)
4
5 I.

ANALYSIS

6

Once judgment has been entered, reconsideration may be sought by filing a motion under

7 Federal Rule of Civil Procedure 60(b) (motion for relief from judgment). See Hinton v. Pac.
8 Enter., 5 F.3d 391, 395 (9th Cir. 1993). Rule 60(b) provides for extraordinary relief and may be
9 invoked only upon a showing of exceptional circumstances. Engleson v. Burlington N.R. Co.,
10 972 F.2d 1038, 1044 (9th Cir.1994) (citing Ben Sager Chem. Int’l v. E. Targosz & Co., 560 F.2d
11 805, 809 (7th Cir. 1977)). Under Rule 60(b), the court may grant reconsideration based on: (1)
12 mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by
13 due diligence could not have been discovered before the court’s decision; (3) fraud by the
14 adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other
15 reason justifying relief. Fed. R. Civ. P. 60(b).
16

The gist of Plaintiff’s arguments supporting his motion boil down to: (1) Plaintiff did not

17 receive the Notice of Hearing for Dismissal for Want of Prosecution, and (2) dismissal is too
18 severe of a sanction. Defendant responds by arguing, among other things, that Plaintiff fails to
19 meet his burden for relief under Rule 60(b), and Plaintiff’s motion is moot because this action
20 was properly dismissed for Plaintiff’s failure to prosecute under Civil Local Rule 41.1. The
21 Court agrees with Defendant.
22
23

A.

24

Civil Local Rule 41.1 states that

Plaintiff’s Dismissal Is Not a Sanction.

25

Actions or proceedings which have been pending in this court for more
than six months, without any proceeding or discovery having been
26
taken therein during such period, may, after notice, be dismissed by the
court for want of prosecution, at the calling of a calendar prepared for
27
that purpose by the clerk. Such dismissal must be without prejudice,
unless otherwise ordered.
28 Civil Local Rule 83.1 provides the court with a vehicle to sanction attorneys or parties, which
09cv2785

2

1 includes the power to sanction by dismissing any action. Civ. L.R. 83.1(a). When the Court
2 issued the Notice of Hearing for Want of Prosecution, it invoked Rule 41.1 and not Rule 83.1.
3 Consequently, the dismissal and entry of judgment were not sanctions against Plaintiff.
4 Therefore, considering the severity of any sanction is not relevant because there was none.
5

On an issue related to Rule 41.1, Plaintiff contends that filing a Notice of Change of

6 Address (Doc. 59) should be remove this action from the reach of Rule 41.1. In other words,
7 filing the Notice of Change of Address is a proceeding under Rule 41.1. However, Plaintiff is
8 wrong. Plaintiff’s notice is not a proceeding. Black’s Law Dictionary defines “proceeding” as
9 “[t]he regular and orderly progression of a lawsuit, including all acts and events between the
10 time of commencement and the entry of judgment.” Plaintiff’s notice did not in any way
11 progress this action. Additionally, under the other prong of Rule 41.1—discovery—which may
12 remove the action from the scope of Rule 41.1, Plaintiff fails to show there was any discovery
13 during the six months leading up to the date when the Notice of Hearing was issued.
14
15

B.

16

Moving on, Plaintiff does not coherently articulate an argument that would entitle him to

Plaintiff Fails to Justify Relief Under Rule 60(b).

17 relief under Rule 60(b). His explanation justifying relief under Rule 60(b) is that “Plaintiff was
18 surprised by the dismissal because he did not receive this Court’s Notice of the Hearing re
19 Dismissal.” (Pl.’s Mot. 8:1–2.) Plaintiff provides a document-by-document explanation that
20 each exhibit attached to Defendant’s opposition brief does not show service because these
21 documents—several of which are documents issued by the Court—lack proofs of service. But
22 all that effort is for naught.
23

On September 17, 2012, Plaintiff filed a Notice of Change of Address. (Doc. 59.) That

24 notice designated Plaintiff’s new address as follows: c/o Wallace & Madden, 444 South Flower
25 Street, 30th Floor, Los Angeles, California 90071. The previous address had been c/o Rosen &
26 Associates, P.C., 444 South Flower Street, Suite 602, Los Angeles, California 90071. The Court
27 was fully aware of the new address when issuing the Notice of Hearing, and acted accordingly.
28 When examining the receipt for the Notice of Hearing, it states that the notice was “served
09cv2785

3

1 conventionally” to John B Wallace, c/o Wallace & Madden, 444 South Flower Street, 30th
2 Floor, Los Angeles, CA 90071. (Doc. 60; see also Bloom Decl. ¶ 7, Ex. 6.) There is no doubt
3 that the Notice of Hearing was sent to the address most recently designated by Plaintiff, and
4 since the notice was not returned, there is a presumption that the notice was received.1 It is not
5 the Court’s duty to ensure that the mailing address of an attorney or party is correct; that is the
6 attorney’s or party’s responsibility. Thus, for all intents and purposes, Plaintiff received the
7 Notice of Hearing for Dismissal for Want of Prosecution.
8

Plaintiff does not give any further explanation related to Rule 60(b). Accordingly, the

9 Court finds that Plaintiff fails to show any exceptional circumstances to justify granting him
10 relief under Rule 60(b). See Fed. R. Civ. P. 60(b); Engleson, 972 F.2d at 1044.
11
12 II.

CONCLUSION & ORDER

13

Because Plaintiff fails to demonstrate entitlement to reconsideration, the Court DENIES

14 his motion for reconsideration in its entirety. (Doc. 66.) The Court also DENIES AS MOOT
15 Plaintiff’s request to set a trial date. A trial date is only set for a civil case during the Final
16 Pretrial Conference, which has not occurred in this case.
17

IT IS SO ORDERED.

18
19 DATED: January 25, 2013
20
21
22

COPY TO:

M. James Lorenz
United States District Court Judge

HON. RUBEN B. BROOKS
23 UNITED STATES MAGISTRATE JUDGE
24 ALL PARTIES/COUNSEL
25
26

1

Plaintiff included a self-addressed, stamped envelope in the package of materials
accompanying his reply brief. Curiously, the address on that envelope is: John Wallace, c/o
27 Rosen & Associates, P.C., 444 S. Flower Street, Suite 3010, Los Angeles, CA 90071. To the
Court’s knowledge, this address has never shown up in any of Plaintiff’s filings in this action. A
28 copy of that envelope is attached to this order.
09cv2785

4

l

John Wallace
444 S. Flower Street
Suite 3010
Los Angeles CA 90071

John Wallace
c/o Rosen & Associates, P.C.
444 S. Flower Street
Suite 3010
Los Angeles, CA 90071