Ertsey v. Perry et al

Filing 24

ORDER DENYING PLAINTIFF'S MOTION TO RE-OPEN re 17 MOTION to Reopen Case filed by Richard Gabriel Ertsey. Signed by JUDGE LESLIE E. KOBAYASHI on 10/12/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD GABRIEL ERTSEY,

)
)
Plaintiff,
)
)
vs.
)
)
KATIE PERRY and ANDREA
)
HECKLER,
)
)
)
Defendants.
_____________________________ )

CIVIL 16-00100 LEK-KSC

ORDER DENYING PLAINTIFF’S MOTION TO RE-OPEN
Pro se Plaintiff Richard Gabriel Ertsey (“Plaintiff”)
filed his Complaint for a Civil Case (“Complaint”) against
Defendants Katie Perry (“Perry”) and Andrea Heckler (“Heckler,”
collectively “Defendants”) on March 7, 2016.

[Dkt. no. 1.]

This

case was closed pursuant to the “Notice of Voluntary Dismissal
with Stipulation Pursuant to F.R.C.P. 41(a)(1)(A(i) [sic]”
(“Notice of Dismissal”) filed on March 29, 2017.

[Dkt. no. 14.]

Before the Court is Plaintiff’s “Motion to Re-Open
Case,” filed on July 27, 2017 (“7/27/17 Motion”).

[Dkt. no. 17.]

The 7/27/17 Motion seeks to reopen Plaintiff’s case against
Heckler.

On August 2, 2017, Plaintiff filed a memorandum that

this Court construes as a further memorandum in support of the
7/27/17 Motion (“8/2/17 Memorandum”).

[Dkt. No. 19.]

Defendants

filed their memorandum in opposition on August 3, 2017.1
no. 21.]

[Dkt.

Although Plaintiff’s 8/2/17 Memorandum requested

additional time to respond to the memorandum in opposition,
Plaintiff did not file a reply.

The Court finds this matter

suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
Plaintiff’s 7/27/17 Motion is hereby denied for the reasons set
forth below.
BACKGROUND
The Complaint alleges that: “From Dec 23.2015 through
Feb 26.2016 kapulei [sic], HI Katie Perry and Andrea Heckler have
inquired about and pressured to answer Richard Ertsey about his
US Army and VA and Social Security related information without

1

On July 17, 2017, Plaintiff filed his “Motion to Re-Open,
Requesting to Relocate Case to the United States District Court
for the District of South Carolina” (“7/17/17 Motion”). [Dkt.
no. 15.] The 7/17/17 Motion sought to re-open Plaintiff’s case
against Perry, but did not address his case against Heckler.
Defendants filed their memorandum in opposition in response to
the briefing schedule for the 7/17/17 Motion. On August 4, 2017,
this Court issued an entering order deeming the 7/17/17 Motion
withdrawn, based on Plaintiff’s representations in the 7/27/17
Motion and the 8/2/17 Memorandum (“8/4/17 EO”). [Dkt. no. 22.]
The 8/4/17 EO stated that, if Heckler believed Defendants’
memorandum in opposition to the 7/17/17 Motion sufficiently
addressed the issues presented in the 7/27/17 Motion, Heckler
could file a one-page notice incorporating Defendants’ memorandum
in opposition as her response to the 7/27/17 Motion. Although
Heckler did not respond to the 8/4/17 EO, this Court construes
Defendants’ memorandum in opposition to the 7/17/17 Motion as
Heckler’s memorandum in opposition to the 7/27/17 Motion.
2

due course of reason at a Family Court Hearing.”
pg. 4.]

[Complaint at

Plaintiff alleges that the information Defendants sought

was confidential, protected by statutory privilege, and subject
to a protective order.

According to Plaintiff, the information

was irrelevant, hearsay, and sought for improper purposes.

[Id.]

Plaintiff alleges that, as a result of Defendants’ actions, he
has suffered severe emotional distress, harm to his personal and
military reputation and credibility, embarrassment, and
inconvenience.
civil rights.

He therefore alleges that Defendants violated his
[Id. at pg. 5.]

Plaintiff’s requested relief

included:
The protected list of questions and any and all of
the statements by Katie Perry and Andrea Heckler
in relation to those questions to be vacated in
any and all Courts of Law as well as anywhere
else, as well as any and all of Richard Ertsey’s
answers to be vacated: deleted from any court’s
entery [sic], sealed and deemed as non courtsubmittable.
[Id.]
According to Defendants, Plaintiff and Perry – who have
one minor child – were divorced on August 23, 2010 in a
Washington state court.

Plaintiff and Perry stipulated to that

Perry would be able to relocate to Hawai`i with her current
husband, who is in the United States Army, and Plaintiff would
follow.

Plaintiff and Perry sought enforcement and modification

of their divorce decree in the Hawai`i family court in 2014.

On

or about November 30, 2015, Perry filed a motion in the Hawai`i
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family court seeking custody changes to allow her to relocate to
South Carolina because of her husband’s orders from the Army.
Heckler represented Perry in the custody proceedings.

[Mem. in

Opp. at 3-4.]
The Notice of Dismissal stated that the case was
“voluntarily dismissed without prejudice against the Defendants,”
with the stipulation that neither the parties nor anyone else
acting on their behalf would request attorney’s fees and costs
regarding this matter from the opposing party.

The 7/27/17

Motion asks this Court to re-open the case because the Notice of
Dismissal was without prejudice.
DISCUSSION
This Court construes Plaintiff’s 7/27/17 Motion as a
motion for relief pursuant to Fed. R. Civ. P. 60(b).

Cf.

MacDonald v. United States, 677 F. App’x 362, 363 (9th Cir. 2017)
(appeal from the denial of a Rule 60(b) motion that sought to
reopen the appellant’s case, vacate his voluntary dismissal
without prejudice, and enter a new dismissal with prejudice).
Rule 60(b) states:
On motion and just terms, the court may relieve a
party or its legal representative from a final
judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or
excusable 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 (whether previously called
intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4)

the judgment is void;

(5) the judgment has been satisfied,
released or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
The only potentially applicable section to Plaintiff’s
Motion is Rule 60(b)(6).
Judgments are not often set aside under
Rule 60(b)(6). Rather, the Rule is “‘used
sparingly as an equitable remedy to prevent
manifest injustice’ and ‘is to be utilized only
where extraordinary circumstances prevented a
party from taking timely action to prevent or
correct an erroneous judgment.’” United States v.
Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)
(quoting United States v. Alpine Land & Reservoir
Co., 984 F.2d 1047, 1049 (9th Cir. 1993)).[2]
Accordingly, a party who moves for such relief
“must demonstrate both injury and circumstances
beyond his control that prevented him from
proceeding with . . . the action in a proper
fashion.” Community Dental Services v. Tani, 282
F.3d 1164, 1168 (9th Cir. 2002).
Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir.
2006) (some alterations in Latshaw).

2

Washington, 394 F.3d 1152,
in a subsequent appeal. 593 F.3d
decision quoted the same language
quoted in the 2005 decision. Id.
5

was overruled on other grounds
790 (9th Cir. 2010). The 2010
from Alpine Land that was
at 797.

Plaintiff voluntarily dismissed this case without
prejudice.

The dismissal without prejudice allows Plaintiff to

file a new action against Heckler based upon the facts alleged in
his Complaint, as he did with claims against Perry.3

See 8/4/17

EO at 2 (deeming the 7/17/17 Motion withdrawn because Plaintiff
has two cases pending against Perry in a South Carolina federal
court).

The dismissal without prejudice does not allow Plaintiff

to reopen this case at any time at his election.

In order to

reopen this case, Plaintiff must establish that relief is
appropriate under Rule 60(b).

Plaintiff has not established any

injury or circumstances beyond his control that prevented him
from proceeding with his claims against Heckler in this case.
See Community Dental, 282 F.3d at 1168.
was within Plaintiff’s control.

In fact, the dismissal

The instant Motion therefore

does not present the type of extraordinary circumstances
warranting relief under Rule 60(b)(6), see Washington, 394 F.3d
at 1157, and none of the other provisions of Rule 60(b) apply
under the circumstances of this case.

Plaintiff has not shown

any ground warranting the relief sought in the 7/27/17 Motion.

3

This Court makes no findings or conclusions about the
merits of Plaintiff’s claims against Heckler, if he decides to
bring a new action against her.
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CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion to
Re-Open Case, filed July 27, 2017, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 12, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

RICHARD GABRIEL ERTSEY V. KATIE PERRY, ET AL.; CIVIL 16-00100
LEK-KSC; ORDER DENYING PLAINTIFF’S MOTION TO RE-OPEN

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