In Re Jordana Bauman

Filing 21

ORDER on Motions for Relief from Judgment or to Vacate September 6, 2016 Order [Doc. Nos. 19 , 20 ]. Signed by Judge Cathy Ann Bencivengo on 5/2/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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In re Jordana Bauman,

Case No.: 3:16-cv-0806-CAB-(BLM)
Debtor.

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ORDER ON MOTIONS FOR RELIEF
FROM JUDGMENT OR TO
VACATE SEPTEMBER 6, 2016
ORDER
[Doc. Nos. 19, 20]

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On April 4, 2016, Debtor’s brother, Mel Marin, filed a motion for withdrawal of
reference. [Doc. No. 1.]

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On April 25, 2016, this Court was unable to ascertain the particular motion or legal

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issue movant sought to withdraw and issued an Order to Show Cause (“OSC”). [Doc. No.

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5.] On May 12, 2016, Debtor responded to the OSC. [Doc. No. 6.] Debtor identified her

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“collateral attack against dismissal or her prior Chapter 13 case” and “debtor’s contempt

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claims against creditors who have been looting her estate and harassing her” as the specific

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issues to withdraw. [Id. at 1-2.] Further, Debtor asserted that her brother has standing

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because he has a lien on debtor’s property. [Id. at 4.] On May 16, 2016, Debtor filed a

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supplemental response to the OSC identifying an additional five issues she sought

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withdrawal of. [Doc. No. 8.]

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3:16-cv-0806-CAB-(BLM)

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While the OSC was under submission, the Bankruptcy Court dismissed the

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underlying petition1. In light of the dismissal, on September 6, 2016, this Court denied as

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moot the motion for withdrawal of reference and ordered that the Clerk of the Court close

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the case. [Doc. No. 11.] On the same day, the Clerk of Court entered judgment and closed

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the case. [Doc. No. 12.]

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On April 24, 2017, Mel Marin filed a Motion for Relief from Judgment or to Vacate

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Order of 9/26/2016 Denying Withdrawal of the Reference of Contempt Motions and

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Adversarial Actions as to Wells Fargo Defendants in Case 16-00301-CL-13 from the

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Bankruptcy Court (Rule 60). [Doc. No. 19.] On the same day, Debtor filed a Motion for

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Relief from Judgment or to Vacate Order of 9/6/2016 Denying Withdrawal of the

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Reference. [Doc. No. 20.] Both motions were made pursuant to Federal Rule of Civil

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Procedure Rule 60.

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Rule 60 provides for extraordinary relief and may be invoked only upon a showing

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of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044

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(9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final

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judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or excusable

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neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b); (3) fraud by the adverse party;

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(4) the judgment is void; (5) the judgment has been satisfied; (6) and other reason justifying

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relief.” Fed. R. Civ. P. 60(b). Further, the Rule provides that a motion brought under it

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“must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a

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year after the entry of judgment or order of the date of the proceeding.” Fed. R. Civ. P.

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60(c).

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The Court begins by noting that the practically identical motions currently before it

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are as muddled as the original motion for withdrawal of reference. Debtor and her brother

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In re Jordana Baumann, Bankr. Case No. 16-00301, Docket No. 149 (September 1, 2016).
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3:16-cv-0806-CAB-(BLM)

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do not articulate under which provision of Rule 60 the motions for reconsideration and

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requests to vacate the September 6, 2016 Order are being sought. That being said, the

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Court has reviewed the motions carefully and concluded that Debtor and her brother have

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not presented any grounds for relief under any of the six permissible grounds. See, e.g.,

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Marly Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009) (“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, of if there is an intervening change in the controlling law.”).

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Even under the catchall provision of clause (6), Debtor and her brother have not

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provided any evidence that demonstrates “extraordinary circumstances” that would

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warrant relief from the judgment. Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989) (a

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party is entitled to relief under Rule 60(b)(6) if he demonstrates “extraordinary

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circumstances” to justify relief). See also Hamilton v. Newland, 374 F.3d 822, 825 (9th

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Cir. 2004) (“[a] party is entitled to relief under Rule 60(b)(6) where ‘extraordinary

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circumstances prevented him from taking timely action to prevent or correct an erroneous

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judgment.”). Debtor and her brother have not met their burden of showing the existence

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of “‘extraordinary circumstances’ justifying the reopening of a final judgment.” Gonzalez

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v. Crosby, 545 U.S. 524, 535 (2005) (citation omitted).

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Moreover, to the extent that Debtor and her brother may be relying on Rule 60(b)(6),

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the Court considers the current motions untimely because they were not filed within a

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reasonable time after the entry of judgment. Hamilton, 374 F.3d at 825 (motions based on

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the first three clauses must be brought within one year of the entry of judgment, while

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motions relying upon the fourth, fifth or sixth clause must be brought “within a reasonable

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time.”). The bankruptcy was dismissed in September 2016 and this Court issued its Order

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in the same month. Filing Rule 60 motions eight months later is not within a reasonable

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time. Even if Debtor and her brother’s delay in moving for reconsideration “may be

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attributable to inattention or inexperience [] neither deficiency constitutes an ‘extraordinary

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circumstance’ that justifies Rule 60(b) relief.” Id.
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For the foregoing reasons, the Motions for Relief from Judgment Under Rule 60
[Doc. Nos. 19, 20] are DENIED and the September 6, 2016 Order remains in effect.
It is SO ORDERED.
Dated: May 2, 2017

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