Limpin v. McSeveney et al

Filing 59

ORDER Denying Plaintiff's Motion for Relief (Doc. No. 58 ). Signed by Judge Anthony J. Battaglia on 10/17/2022. (All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MELCHOR KARL T. LIMPIN,

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Case No.: 16-cv-02351-AJB-BLM
ORDER DENYING PLAINTIFF’S
MOTION FOR RELIEF

Plaintiff,
v.

(Doc. No. 58)

ROBERT MCSEVENEY, Immigration
Judge, et al.,

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Defendant.

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Before the Court is Melchor Karl T. Limpin’s (“Limpin”) motion for relief under

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Federal Rule of Civil Procedure (“Rule”) 60(b)(1) requesting the Court to “reverse its

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order” striking his motions for leave to proceed in forma pauperis and to amend his

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complaint. (Doc. No. 58 at 1.) Limpin contends the Court made a mistake when it struck

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his filings based on the Ninth Circuit’s decision to affirm the Court’s dismissal of Limpin’s

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action. (Id.) For the reasons set forth below, the Court DENIES Limpin’s motion.

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I.

BACKGROUND

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Limpin filed suit against several federal defendants in their official and individual

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capacities, seeking relief under Bivens for alleged constitutional violations. (Doc. No. 19.)

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Because “the United States has not waived [its] sovereign immunity and Bivens claims
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cannot be brought against federal agents sued in their official capacity,” the Court found it

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lacked subject matter jurisdiction over the defendants in their official capacity and granted

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their motion to dismiss on that basis. (Doc. No. 40 at 7.) Additionally, because Limpin

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failed to effectuate proper service on the defendants in their individual capacities despite

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receiving notice and opportunity to do so, the Court found it lacked personal jurisdiction

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over the defendants in their individual capacities and granted their motion to dismiss on

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that basis. (Id. at 7–8.) The Court accordingly dismissed Limpin’s complaint without

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prejudice. (Id. at 8.)

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Limpin appealed. (Doc. No. 41.) The Ninth Circuit affirmed. (Doc. No. 47.) Several

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months later, Limpin filed with this Court motions for leave to proceed in forma pauperis

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and file a second amended complaint. (Doc. Nos. 55, 56.) The Court struck those filings,

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explaining that the Ninth Circuit affirmed its dismissal of his action and that this case is

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closed. (Doc. No. 57.) The instant motion for relief under Rule 60(b)(1) follows.

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II.

DISCUSSION

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Under Rule 60(b)(1), a court may relieve a party from a final judgment or order on

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certain grounds, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R.

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Civ. P. 60(b)(1). “The district court has discretion to correct a judgment for mistake or

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inadvertence, either on the part of counsel or the court itself.” Fid. Fed. Bank, FSB v.

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Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 2004).

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Here, Limpin argues the Court mistakenly struck his motions for leave to proceed in

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forma pauperis and file a second amended complaint because “he seeks to amend based on

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allegations of ‘different facts’ or ‘different grounds’ central to this case, not previously

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argued with the appellate court.” (Doc. No. 58 at 2.) His argument does not merit relief

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under Rule 60(b)(1). The Ninth Circuit affirmed the Court’s decision to dismiss Limpin’s

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case. Consequently, this case is over, and Limpin cannot amend his complaint to add

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different facts and claims.1

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Because the Court’s dismissal of Limpin’s complaint was without prejudice, however, Limpin may
seek to file a new, separate case.

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Lastly, Limpin argues that he should have been allowed to amend his complaint as

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a matter of right under Rule 15(a). (Doc. No. 58 at 2–3.) He is mistaken. Because Limpin

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previously amended his complaint as a matter of course in December 2018, (Doc. No. 19),

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he no longer has available to him an amendment as of right. See Fed. R. Civ. P. 15(a)(1)

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(“A party may amend its pleading once as a matter of course[.]” (emphasis added)).

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For the foregoing reasons, the Court finds that Limpin has not presented a mistake

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on the part of the Court warranting reversal of its prior decision. See Fed. R. Civ. P.

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60(b)(1); Fid. Fed. Bank, 387 F.3d at 1024.

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III.

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CONCLUSION
There being no mistake in the Court’s decision to strike Limpin’s filings, the Court

DENIES Limpin’s motion for relief pursuant to Rule 60(b)(1).
IT IS SO ORDERED.
Dated: October 17, 2022

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