Ryan v. Quick et al

Filing 11

ORDER denying 10 Motion for Reconsideration. Plaintiff is advised this case remains closed, and no further filings will be accepted. Signed by Judge Michael M. Anello on 5/12/2011. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MYKAL S. RYAN,

CASE NO. 10 CV 1326 MMA (WMC)
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

vs.
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LEE M. QUICK; LEE M. QUICK, P.C.,
Defendants.

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[Doc. No. 10]

On May 9, 2011, Plaintiff Mykal Ryan filed an “Objection to Decision and Motion to

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Continue Prosecution of Case.” [Doc. No. 10.] Therein, Plaintiff challenges the Court’s dismissal

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of this matter on December 7, 2010. [Doc. No. 8.] The Court construes Plaintiff’s objection as a

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motion for reconsideration of the Court’s entry of judgment. For the reasons stated below, the

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Court DENIES Plaintiff’s motion.

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BACKGROUND

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On June 23, 2010, Plaintiff filed a complaint alleging thirty causes of action against

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Defendants, including fourteen claims for perjury, thirteen claims for conspiracy to commit

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perjury, and claims for defamation, malice, and intentional infliction of emotional distress; a

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summons was issued the same day. [Doc. Nos. 1, 2.] Plaintiff’s claims arise out of events related

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to his appointment as trustee of his deceased brother’s estate, subsequent efforts to remove

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Plaintiff from that position due to disagreement with his management of the trust assets, and

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allegedly false accusations that Plaintiff misappropriated over one million dollars from the trust.
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All of the events complained of occurred in the state of Virginia, and Defendants reside in

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Virginia. However, Plaintiff, a California resident, deliberately filed this action in the Southern

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District of California claiming that, this “is the proper venue for fairness to [Plaintiff] to allow due

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process and in the interest of justice. Any other venue would deny [him] the opportunity to

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prosecute the case and to fully participate in the trial and hearings.” [Doc. No. 1.] Plaintiff asserts

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he suffers from Post Traumatic Stress Disorder (“PTSD”) which prohibits him from traveling

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outside of California.

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Nearly five months after Plaintiff filed his complaint, Plaintiff had not served either named

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Defendant. On November 4, 2010, the Court set a hearing for December 6, 2010 for Plaintiff to

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show cause why he had not served Defendants within the time permitted by Federal Rule of Civil

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Procedure 4(m). [Doc. No. 3.] On December 1, 2010, Defendants specially appeared to notify the

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Court that Plaintiff had unsuccessfully attempted service on October 27, 2010, and to assert that

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Plaintiff’s choice of venue in California was improper. [Doc. No. 5.] Plaintiff filed nothing in

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response to the notice of hearing, and he did not appear at the hearing on December 6, 2010.

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Accordingly, on December 7, 2010, the Court entered judgment and dismissed the action without

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prejudice for failure to serve Defendants in accordance with Rule 4(m), and for improper venue.

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[Doc. No. 8.]

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More than five months after the Court dismissed Defendants without prejudice and

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terminated the case, Plaintiff filed the pending motion challenging the Court’s entry of judgment.

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LEGAL STANDARD
Rule 60(b)1 of the Federal Rules of Civil Procedure provides for reconsideration where one

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or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2)

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newly discovered evidence which by due diligence could not have been discovered before the

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court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the

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judgment; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. A Cand S

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A motion to alter or amend a judgment must be made within twenty-eight (28) days of entry
of judgment. Fed. R. Civ. P. 59(e). Here, the Court’s order was entered on December 7, 2010, and
the present motion was filed on May 9, 2011, well beyond the twenty-eight day period. As such, the
motion to reconsider is untimely under Rule 59(e) and should be considered under Rule 60(b). Am.
Ironworks & Erectors, Inc. v. N. Am. Contr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001).
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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff does not reference Rule 60(b) in his moving

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papers, and does not argue that reconsideration should be based on subparagraphs (1) through (5).

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Therefore the Court sua sponte considers the motion pursuant to Rule 60(b)(6).

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Under subparagraph (6), Plaintiff must show that there are extraordinary grounds justifying

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relief; mere dissatisfaction with the court’s order or belief that the court is wrong in its decision are

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not adequate grounds for relief. Twentieth Century -- Fox Film Corp. v. Dunnahoo, 637 F.2d

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1338, 1341 (9th Cir. 1981). Further, Rule 60(b)(6) “is used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a

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party from taking timely action to prevent or correct an erroneous judgment.” Latshaw v. Trainer

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Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006).

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DISCUSSION

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Plaintiff asserts he has been unable to prosecute his action against Defendants because he

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“was diagnosed . . . with Post Traumatic Stress Disorder (PTSD) in August 2005 after serving two

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(2) consecutive tours of duty in Iraq as an Army soldier and the second tour was voluntary.” [Doc.

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No.10, ¶¶3, 10, 24.] Plaintiff therefore requests that he be permitted to “continue the prosecution

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of this case as a reasonable accommodation for [his] PTSD disability.” [Id. at ¶25.] Plaintiff does

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not, however, demonstrate any legally cognizable ground for relief from the judgment entered in

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this case. Plaintiff asserts he has been completely disabled by his PTSD since 2005, and offers no

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indication his ability to prosecute this matter has improved since he filed the complaint in June

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2010. [Id. at ¶19.] Nor does Plaintiff acknowledge either ground on which the Court entered the

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judgment.

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(A)

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Failure to Serve
The Court dismissed Plaintiff’s complaint without prejudice on December 7, 2010, on two

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grounds. First, Plaintiff did not serve Defendants within the time permitted under Rule 4(m). Rule

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4(m) provides:

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Time Limit for Service. If a defendant is not served within 120 days
after the complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified
time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
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Plaintiff filed his complaint and a summons was issued on June 23, 2010. Plaintiff’s time to serve

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Defendants under Rule 4(m) expired on October 22, 2010. According to Defendants, Plaintiff

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attempted to serve them on October 27, 2010, but service was ineffective and otherwise untimely.

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[Doc. No. 5.]

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In response to Plaintiff’s failure to serve Defendants or take any action to prosecute his

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case, the Court set a hearing for December 6, 2010 for Plaintiff to show cause why he had not

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served Defendants within the time permitted by Rule 4(m). [Doc. No. 3.] Plaintiff filed nothing in

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response to the notice of hearing, and he did not appear at the hearing on December 6.

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Accordingly, the Court entered a judgment on December 7, 2010 dismissing Defendants without

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prejudice. [Doc. No. 8.]

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Plaintiff’s current motion does not demonstrate reconsideration of the December 2010

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judgment is warranted. Plaintiff still does not indicate why he was unable to serve Defendants

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within the time permitted by Rule 4(m) in 2010, nor does he assert he is now capable of effecting

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service. Rather, Plaintiff repeatedly asserts he is completely disabled by his PTSD, and asks the

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Court to accommodate his disability by allowing him to proceed with his action. Although the

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Court is sympathetic to Plaintiff’s condition, the fact that Plaintiff suffers from a disability, alone,

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does not demonstrate good cause to allow Plaintiff to maintain his action indefinitely without any

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meaningful progression. Plaintiff therefore has not shown relief from the Court’s judgment in this

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action is appropriate.

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(B)

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Improper Venue
Second, the Court dismissed Plaintiff’s action on the ground that the Southern District of

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California is not an appropriate venue. Plaintiff is a resident of California, however, all of the acts

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alleged in the complaint occurred in Virginia, and Defendants are residents of Virginia. Further,

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Plaintiff filed this action in California solely because his PTSD symptoms prevent him from

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traveling. According to Plaintiff, “[v]enue of this action is placed in this Court in the interest of

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justice and fairness and to allow Mr. Ryan a reasonable accommodation for his PTSD disability.”

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[Doc. No. 1, ¶17.] “Any other venue would deny Mr. Ryan’s participation in the trial and

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hearings.” [Id. at ¶16.] Plaintiff’s pending motion for reconsideration simply reiterates his belief
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that the “legal, logical and reasonable place of venue is San Diego” to accommodate his PTSD.

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[Doc. No.10, ¶21.]

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Plaintiff provides no authority for the proposition that his disability entitles him to venue in

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Southern California. In fact, “it is well-established that Plaintiff may have his day in court without

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ever setting foot in a courtroom.” Ryan v. Hyden, 2010 U.S. Dist. LEXIS 110431 *6-7 (S.D. Cal.)

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(citing Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 11 (2d Cir. 1995); Utoafili v. Trident Seafoods

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Corp., 2009 U.S. Dist. LEXIS 127109, 2009 WL 6465288, at *6 (N.D. Cal. Oct. 19, 2009) (“Even

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if this Court were to presume a strong likelihood that Plaintiff would be unable to travel to

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Washington for trial herself, physical disability alone is generally not sufficient to conclude that a

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distant venue would effectively deprive a plaintiff of her day in court.”); Hale v. Vacaville

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Housing Auth., 2009 U.S. Dist. LEXIS 14350, 2009 WL 311399, at *1 (N.D. Cal. Feb. 9, 2009)

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(“[A]lthough Hale states she has a ‘disability’ and problems understanding the English language,

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such circumstances do not provide a basis for venue in the Northern District.”)). Accordingly,

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based on the record before the Court, Plaintiff is not entitled to relief from the judgment

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dismissing Defendants for improper venue.

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CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s motion for reconsideration.
Plaintiff is advised this case remains closed, and no further filings will be accepted.
IT IS SO ORDERED.

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DATED: May 12, 2011
Hon. Michael M. Anello
United States District Judge

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