Casart v. USA

Filing 57

ORDER. Ordered that, in the absence of circumstances justifying relief, the Motion for Relief from Judgment 54 is Denied by Chief Judge Wiley Y. Daniel on 06/28/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 04-cv-00437-WYD-CBS
JAMES K. CASART,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.
_____________________________________________________________________
THE UNITED STATES OF AMERICA,
Counterclaim Plaintiff,
v.
JAMES K. CASART, SCOTT CONNERS, TERRY A. FICKEN, TODD K. FICKEN,
FREDERICK J. KLODT,
Counterclaim Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
THIS MATTER comes before the Court on Counterclaim Defendant Frederick J.
Klodt’s Motion for Relief from Judgment [ECF No. 54] filed May 31, 2011. Counterclaim
Plaintiff, the United States filed its Response [ECF No. 56] on June 22, 2011.
The Counterclaim in this matter was filed June 7, 2004. By his own admission, Klodt
was “notified” of the claim against him on June 17, 2004. On October 26, 2004, the United
States (“Government”) filed its “Notice of Completion of Service of Process.” A Motion for
Entry of Default against Klodt was filed by the Government on January 10, 2005. A Clerk’s

Default was entered on January 21, 2005. A Motion for Default Judgment against Klodt
was filed by the Government on May 9, 2007. A default judgment was entered against him
on May 16, 2007.
Klodt has now requested relief, pursuant to FED. R. CIV. P. 60(b) from the 2007
judgment.
“Relief under Rule 60(b) is discretionary and is warranted only in exceptional
circumstances.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); see
also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). “A litigant
shows exceptional circumstances by satisfying one or more of Rule 60(b)’s six grounds for
relief from judgment.” Van Skiver, 952 F.2d at 1243-44.
As noted, Rule 60(b) contains six separate grounds for relief, but Klodt relies on only
the most general of the six. He urges me to grant relief based on Rule 60(b)(6) in
requesting that I set aside the judgment “in the interests of justice.”
Rule 60(b)(6) provides that, “On motion and upon such terms as are just, the court
may relieve a party or a party’s legal representative from a final judgment . . . [for] any other
reason justifying relief from the operation of the judgment.” “Rule 60(b)(6) has been
described by this court as a ‘grand reservoir of equitable power to do justice in a particular
case.’” Van Skiver v. United States , 952 F.2d 1241, 1244 (10th Cir. 1991) (quotation and
internal quotation marks omitted). “[A] district court may grant a Rule 60(b)(6) motion only
in extraordinary circumstances and only when necessary to accomplish justice.” Cashner
v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir.1996).
As a preliminary matter, I note that Rule 60 limits the timing of most motions for relief
under it.

“A motion under Rule 60(b) must be made within a reasonable time--and for
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reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the
date of the proceeding.” Rule 60(c)(1). Consequently, as his request is not made under
subsection (1), (2) or (3), Klodt need only show that his request has been made within a
‘reasonable time.’
Klodt’s motion includes a fairly lengthy section titled Factual Background which sets
forth the chain of events from his vantage point. He intermixes events in the lawsuit,
starting when Plaintiff Casart sued for a tax refund, and in his ongoing dealings with the
Internal Revenue Service with which he was dealing through ‘JK Harris,’ a company which
describes itself on its website as a “tax representation firm.”
The Background section makes it clear that Klodt was dealing with many officials of
the Internal Revenue Service (IRS), the Department of Justice Attorney who was
prosecuting the counterclaim in this matter (referred to by Klodt generally as ‘DOJ’) and
individuals at JK Harris. As he explains it, the multiple fronts occurred because the IRS
was attempting to collect money from him for seemingly the same debt for which the ‘DOJ’
was suing him. He recounts filing offers in compromise and being involved in IRS Appeals.
It is clear that Klodt was aware that this lawsuit was proceeding. For example, he
notes that he was deposed for this case on February 17, 2005. He also mentions that he
was informed of the dates that other Counterclaim Defendants were deposed. After stating
that a settlement conference was held regarding this lawsuit, he laments that “it appears
that nothing was said to the court about Klodt’s situation” because a default was entered
against him the next day. (Mtn. at 6). He goes on to state, “All of these Court notices were
given to JK Harris and Klodt assumed the matter was being attended.” Id.

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A review of the exhibits sent with Klodt’s motion gives no indication of why Klodt
would have believed that the JK Harris company was involved with the lawsuit. While the
subjects of the lawsuit and the IRS dealings clearly overlapped, Klodt has submitted
nothing that reasonably would have made him believe that the lawsuit was being ‘attended’
when he admits that he was receiving documents like the Clerk’s Entry of Default.
The motion appears to attempt to put the blame for the lack of communication on
everyone except Klodt. “The IRS apparently never told the DOJ about [Klodt’s Offer in
Compromise] and the DOJ told the Court that Fred Klodt had not responded.” While this
statement might be understandable from a layman, it is rather astounding from counsel
who is well aware that Klodt did not “respond” to the counterclaim filed against him.
Finally, Klodt’s motion contains no explanation of why he waited four years after the
entry of a judgment against him to request relief from the judgment.

Without any

explanation of the delay, it would be impossible for me to find that the motion has been filed
within a ‘reasonable time.’
While it appears that Klodt might possibly a valid defense, that alone cannot create
the extraordinary circumstances required by Rule 60(b)(6). “There are no claims, for
instance, that [Klodt was] unable to comply with discovery deadlines or to attend the
settlement conference because of compelling circumstances beyond [his] control.” Bud
Brooks Trucking, Inc. v. Bill Hodges, 909 F.2d 1437, 1440 (10th Cir. 1990).

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It is hereby ORDERED that, in the absence of circumstances justifying relief, the
Motion for Relief from Judgment is Denied.
Dated: June 28, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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