Webb v. Berryhill

Filing 23

ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF PURSUANT TO FED.R.CIV.P. 60: 20 MOTION For Relief Under Fed. R. Civ. P. 60 filed by Frank Webb, Jr.., Case reopened.. Signed by JUDGE LESLIE E. KOBAYASHI on 08/16/2017. < font size = 1> Instructions to the Parties Plaintiff must file his amended complaint by October 10, 2017. Plaintiff's Contact Information If Plaintiff's address changes while this case is pending, he must inform D efendant's counsel and the Court about the change. If Plaintiff is unable to receive mail at any address, he may file a notice with a telephone number where he can be contacted when court filings are available for him to pick up at the Clerk& #039;s Office during regular business hours. If Plaintiff is unable to provide either a mailing address or a telephone number, he must file a notice informing Defendant's counsel and the Court of the situation. Plaintiff will then be responsibl e for periodically contacting the Clerk's Office at least once a week to find out of if there are court filings available for him to pick up. If Plaintiff files either a notice that he does not have a mailing address or a notice that h e does not have either a mailing address or a telephone number, Defendant may serve filings on Plaintiff by leaving them at the Clerk's Office. Service on Plaintiff in this manner will only be effective if Defendant: delivers Plaintiff's co pies of Defendant's filings to the Clerk's Office; and informs Plaintiff that one of Defendant's filings is available for him at the Clerk's Office, if Plaintiff has provided a telephone number. Defendant's certificate of ser vice must certify compliance with these requirements. If Defendant fails to comply with these requirements, the filing will not be considered to have been served on Plaintiff and the filing may be stricken. (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 August 17, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANK WEBB JR.,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Director of Social Security, )
)
Defendant.
)
_____________________________ )

CIVIL 16-00233 LEK-RLP

ORDER GRANTING PLAINTIFF’S MOTION FOR
RELIEF PURSUANT TO FED. R. CIV. P. 60
Before the Court is pro se Plaintiff Frank Webb Jr.’s
(“Plaintiff”) “Order to Show Cause, Not to Dismiss Plaintiff
Case,” filed on June 14, 2017, which has been construed as a
motion for relief pursuant to Fed. R. Civ. P. 60 (“Motion”).
[Dkt. nos. 20 (Motion), 21 (entering order (“EO”) construing
Motion).]

Defendant Nancy A. Berryhill, Acting Director of

Social Security (“Defendant”), filed her response on July 6,
2017.

[Dkt. no. 22.]

The Court has considered the Motion as

non-hearing matter pursuant to Rule LR7.2(e) of the Local Rules
of Practice of the United States District Court for the District
of Hawai`i (“Local Rules”).

Plaintiff’s Motion is hereby granted

for the reasons set forth below.
BACKGROUND
Plaintiff filed his Complaint for Damages (“Complaint”)
on May 13, 2016.

[Dkt. no. 1.]

Defendant Carolyn W. Colvin,

Acting Commissioner of Social Security, filed her Motion to
Dismiss Plaintiff’s Complaint on August 5, 2016 (“8/5/16 Motion
to Dismiss”).1

[Dkt. no. 7.]

On November 23, 2016, this Court

issued an order granting in part and denying in part the 8/5/16
Motion to Dismiss (“11/23/16 Order”).

[Dkt. no. 10.]

The

11/23/16 Order dismissed without prejudice: the portion of
Count V in which Plaintiff attempted to assert a 42 U.S.C.
§ 405(g) appeal; and Count VI, Plaintiff’s intentional infliction
of emotional distress (“IIED”) claim.

It also noted that the

8/5/16 Motion to Dismiss did not address Count IV, which alleged
that Defendant violated 5 U.S.C. § 552a(d).

Plaintiff was

allowed to file a motion seeking leave to file an amended
complaint that included his § 552a(d) claim, his IIED claim, and
his claim asserting a § 405(g) appeal (“Motion for Leave”) by
January 19, 2017.

[11/23/16 Order at 18-19.]

Plaintiff did not file a Motion for Leave.

On

January 25, 2017, this Court issued an order that, among other
things, dismissed Count VI and the remaining portion of Count V
with prejudice and directed the parties to submit letter briefs
addressing how Count IV – the § 552a(d) claim – would be
litigated (“1/25/17 Order”).

[Dkt. no. 12.]

On February 2,

2017, Defendant filed a Motion to Dismiss Count IV of Plaintiff’s

1

Nancy A. Berryhill is now the Acting Commissioner of
Social Security (“Defendant”) and has been substituted as the
defendant in this case pursuant to Fed. R. Civ. P. 25(d).
2

Complaint (“2/2/17 Motion to Dismiss”), which this Court denied
without prejudice to the filing of a motion for summary judgment
addressing the same issues.

[Dkt. nos. 13 (2/2/17 Motion to

Dismiss), 14 (EO denying motion).]
Plaintiff failed to submit a letter brief in response
to the 1/25/17 Order and, on May 11, 2017, this Court issued the
Order to Show Cause Why the Case Should Note Be Dismissed for
Failure to Prosecute (“5/11/17 OSC”).
did not respond to the 5/11/17 OSC.

[Dkt. no. 17.]

Plaintiff

On June 14, 2017, this Court

issued the Order Dismissing Claim with Prejudice and Directing
that the Case Be Closed (“6/14/17 Order”).

[Dkt. no. 18.]

The

Judgment in a Civil Case (“Judgment”) was issued later that day.
[Dkt. no. 19.]
The Motion seeks to vacate the Judgment, re-open the
case, and allow Plaintiff to litigate his case because he was
unable to prosecute his claims due to serious health and housing
issues, which are described more fully in the Motion.
DISCUSSION
I.

Plaintiff’s Motion
Fed. R. Civ. P. 60(b) states, in relevant part: “On

motion and just terms, the court may relieve a party . . . from a
final judgment, order, or proceeding for the following reasons:
. . . (6) any other reason that justifies relief.”

3

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).
Plaintiff’s case was dismissed with prejudice for
failure to prosecute.

He states that he was unable to prosecute

this case because of his health issues and the fact that he
became homeless.

Defendant assumes that Plaintiff’s statements

are true and does not object to his request for Rule 60 relief.
[Response at 2.]

Plaintiff has therefore established both

“injury and circumstances beyond his control that prevented him
from” prosecuting the case.

See Tani, 282 F.3d at 1168.

This

Court concludes that Rule 60(b)(6) relief is appropriate in this
case.
When a court grants a Rule 60(b) motion, it must be on
“just terms.”

Defendant argues that this Court should only grant

2

Washington, 394 F.3d 1152, was overruled on other grounds
in a subsequent appeal. 593 F.3d 790 (9th Cir. 2010).
4

the Motion as to Plaintiff’s § 552a(d) claim, and should require
Plaintiff to address the issues raised in the 2/2/17 Motion to
Dismiss before it grants Rule 60(b)(6) relief.

The circumstances

described in the Motion, however, likely prevented Plaintiff from
filing the Motion for Leave regarding his IIED claim and his
claim asserting a § 405(g) appeal as well as from prosecuting his
§ 552a(d) claim.

Moreover, Defendant will not be unduly

prejudiced because it can file a motion to dismiss the amended
complaint based on, among other things, the issues raised in the
2/2/17 Motion to Dismiss.

This Court therefore declines to

impose the restrictions requested in Defendant’s Response.

Over

Defendant’s objection, Plaintiff’s Motion is granted insofar as
this Court will allow him to file an amended complaint asserting
his § 552a(d) claim, his IIED claim, and his claim asserting a
§ 405(g) appeal.
II.

Instructions to the Parties
A.

Amended Complaint
Plaintiff must file his amended complaint by

October 10, 2017.

The amended complaint must include all of the

factual allegations that his claims rely upon.

In other words,

Plaintiff cannot incorporate any portion of his original
Complaint into his amended complaint by merely referring to the
original Complaint.

This Court CAUTIONS Plaintiff that he does

not have the Court’s permission to add any new parties or new
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claims in the amended complaint.

In addition, Plaintiff’s

amended complaint should address: the defects in his IIED claim
and his § 405(g) appeal that this Court identified in the
11/23/16 Order; and the issues Defendant raised in the 2/2/17
Motion to Dismiss.
This Court CAUTIONS Plaintiff that, if he fails to file
his amended complaint by October 10, 2017, his case will be
dismissed for failure to prosecute.
B.

Plaintiff’s Contact Information
If Plaintiff’s address changes while this case is

pending, he must inform Defendant’s counsel and the Court about
the change.

Local Rule 83.1(h) states, in relevant part:

A pro se party shall . . . file and serve on all
other parties who have appeared in the action any
change of address, and the effective date of the
change. The notice required by this rule shall be
filed within fourteen (14) days of the change.
Failure to comply with this rule may result in
sanctions, including but not limited to monetary
fines, dismissal of the case, or entry of a
judgment.
If Plaintiff is unable to receive mail at any address, he may
file a notice with a telephone number where he can be contacted
when court filings are available for him to pick up at the
Clerk’s Office during regular business hours.

If Plaintiff is

unable to provide either a mailing address or a telephone number,
he must file a notice informing Defendant’s counsel and the Court
of the situation.

Plaintiff will then be responsible for
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periodically contacting the Clerk’s Office – at least once a week
– to find out of if there are court filings available for him to
pick up.
If Plaintiff files either a notice that he does not
have a mailing address or a notice that he does not have either a
mailing address or a telephone number, Defendant may serve
filings on Plaintiff by leaving them at the Clerk’s Office.
Service on Plaintiff in this manner will only be effective if
Defendant: delivers Plaintiff’s copies of Defendant’s filings to
the Clerk’s Office; and informs Plaintiff that one of Defendant’s
filings is available for him at the Clerk’s Office, if Plaintiff
has provided a telephone number.

Defendant’s certificate of

service must certify compliance with these requirements.

If

Defendant fails to comply with these requirements, the filing
will not be considered to have been served on Plaintiff and the
filing may be stricken.
CONCLUSION
On the basis of the foregoing, pro se Plaintiff
Frank Webb Jr.’s “Order to Show Cause, Not to Dismiss Plaintiff
Case,” filed June 14, 2017, which has been construed as a motion
for relief pursuant to Fed. R. Civ. P. 60, is HEREBY GRANTED.
The Judgment in a Civil Case, [filed 6/14/17 (dkt. no. 19),] is
VACATED, and the Clerk’s Office is DIRECTED to re-open the case.
The Court also SETS ASIDE the portion of its January 25, 2017

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order dismissing Plaintiff’s claims with prejudice and its
June 14, 2017 order.

[Dkt. nos. 12, 18.]

Plaintiff may file an amended complaint, consistent
with the terms of this Order, by October 10, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 16, 2017.

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

FRANK WEBB JR. VS. NANCY A. BERRYHILL, ETC; CIVIL 16-00233 LEKRLP; ORDER GRANTING PLAINTIFF’S MOTION FOR RELIEF PURSUANT TO
FED. R. CIV. P. 60

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