Marinkovic Bauman v. Unknown

Filing 42

ORDER denying Debtor Jordana Bauman's 34 Motion for Relief from Judgment Pursuant to Rule 60(b)(4) and (5). Signed by Judge Cynthia Bashant on 4/28/2017. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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In re: JORDANA MARINKOVIC
BAUMAN,

Case No. 14-cv-00408-BAS-DHB

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ORDER DENYING MOTION
FOR RELIEF FROM
JUDGMENT

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[ECF No. 34]

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Debtor,

JORDANA MARINKOVIC
BAUMAN,

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Debtor – Appellant,
v.

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THOMAS H. BILLINGSLEA, Jr.,
Chapter 13 Trustee,

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Trustee – Appellee.

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On February 21, 2014, Debtor Jordana Bauman filed an appeal from the

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Bankruptcy Court’s denial of her motion to vacate, rehear, amend and clarify the

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Bankruptcy Court’s dismissal of her bankruptcy. (ECF No. 1.) She simultaneously

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filed an election designating the district court as the appellate court for her appeal.

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(ECF No. 1-1.)
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On April 21, 2014, the District Court ordered that Bauman file her appellate

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brief by July 18, 2014. (ECF No. 9.) Bauman failed to do so. On October 30, 2014,

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the District Court issued an Order to Show Cause as to why the bankruptcy appeal

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should not be dismissed for failure to file a timely brief. (ECF No. 20.) Bauman was

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ordered to file any motions or applications for relief by November 14, 2014, and was

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warned that failure to do so may result in dismissal of her appeal. (Id.) Bauman

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failed to respond, and on November 20, 2014, the District Court dismissed the appeal.

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(ECF No. 21.)

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On March 2, 2015, Bauman filed both a Motion to Vacate the Order dismissing

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the case (ECF No. 26) and a Notice of Appeal to the Ninth Circuit (ECF No. 27.) On

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March 9, 2015, the District Court denied the Motion to Vacate as the case was on

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appeal and the District Court was divested of jurisdiction. (ECF No. 31.)

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On April 8, 2015, the Ninth Circuit Court of Appeal dismissed the appeal

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because Bauman failed to pay the docketing/filing fees in the case. (ECF No. 32.) A

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year and half later, on November 16, 2016, Bauman’s brother filed a Motion for

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Relief from Judgment under Federal Rule of Civil Procedure 60(b)(4) and (5). (ECF

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No. 34.) Bauman filed a Motion for Joinder in her brother’s Motion. (ECF No. 36.)

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The Bankruptcy Trustee opposed. (ECF No. 37.)

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For the reasons stated below, the Court DENIES the Motion for Relief from

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Judgment. (ECF Nos. 34, 36.)

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I.

ANALYSIS

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Federal Rule of Civil Procedure 60(b) provides for relief from judgment on

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several grounds, including that the judgment was void and that “the judgment has

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been satisfied, released or discharged; it is based on an earlier judgment that has been

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reversed or vacated; or applying it prospectively is no longer equitable.” Fed. R. Civ.

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P. 60(b)(4); (5). A motion under Rule 60(b) must be made within a “reasonable time.”

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Fed. R. Civ. P. 60(c)(1).

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Rule 60(b)(4) allows a party to seek relief from a final judgment that is “void,”
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but “only in the rare instance where a judgment is premised either on a certain type

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of jurisdictional error or on a violation of due process that deprives a party of notice

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or the opportunity to be heard.” United States Aid Funds, Inc. v. Espinosa, 559 U.S.

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260, 271 (2010). “A judgment is not void . . . simply because it is or may have been

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erroneous.” Id. (quotation omitted.) Nor is a motion for relief under Rule 60(b) a

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substitute for a timely appeal. Id.

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“What constitutes a reasonable time depends on the facts of each case.” In re

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Pac. Far East Lines, Inc., 889 F.2d 242, 249 (9th Cir. 1989). Major considerations

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include whether the other side was prejudiced by the delay and whether the moving

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party had good reason for failing to take action sooner. Id.

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Putting aside for a moment the fact that Bauman’s brother is not a party in this

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case and has no standing to bring a Motion for Relief from Judgment, the fact remains

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that there is nothing in the motion that supports a finding of relief under either Rule

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60(b)(4) or (5). Although the motion argues that the Bankruptcy Court’s decision

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was void, it makes no argument that this Court—which is the court that dismissed the

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case—lacked jurisdiction or that Bauman was deprived of notice or an opportunity to

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be heard. The record reflects quite the contrary—Bauman was given an opportunity

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to explain why she had not filed a timely brief in the Order to Show Cause, and she

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was given the opportunity to argue the case on appeal. The fact that she pursued

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neither option does not make the judgment void. See 11 Charles Alan Wright, et al.,

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Federal Practice and Procedure § 2862 (3d ed. 2012) (explaining that a judgment is

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void under Rule 60(b)(4) “only if the court that rendered it lacked jurisdiction of the

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subject matter, or of the parties, or if it acted inconsistent with due process of law”)

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(footnotes omitted). Similarly, nothing in the Motion for Relief details any evidence

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that any earlier judgment has been reversed or vacated or that applying the rule

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prospectively is no longer equitable.

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Finally, nothing in the Motion for Relief explains the 19-month delay in filing

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the motion. Bauman clearly understands how to bring an appeal—she did so in
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February of 2014, and then failed to follow through with it after repeated admonitions

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by the Court. The policy of finality militates against reopening the case this many

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months after it was dismissed. See, e.g., Park West Galleries, Inc. v. Hochman, 692

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F.3d 539, 545 (6th Cir. 2012) (explaining that relief under Rule 60(b) is

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“circumscribed by public policy favoring finality of judgments and termination of

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litigation”) (internal quotation marks and citation omitted).

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II.

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CONCLUSION
For the foregoing reasons, the Motion for Relief from Judgment brought

pursuant to Rule 60(b)(4) and (5) is DENIED. (ECF No. 34.)
IT IS SO ORDERED.
DATED: April 28, 2017

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