Myzer v. George W. Bush

Filing 146

MEMORANDUM AND ORDER overruling 144 Motion for Reconsideration. Signed by District Judge Kathryn H. Vratil on 3/9/2018. Mailed to pro se party John S. Myzer by regular mail. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN S. MYZER,

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Plaintiff,
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v.
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GEORGE W. BUSH, et al.,
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Defendants.
)
__________________________________________)

CIVIL ACTION
No. 03-2504-KHV

MEMORANDUM AND ORDER
On October 8, 2003, plaintiff brought suit against President George W. Bush and others,
alleging that numerous conspirators engaged in a scheme to conceal plaintiff’s true identity and
prevent him from receiving his rightful inheritance. On October 25, 2004, the Court dismissed
plaintiff’s suit with prejudice because, among other things, plaintiff did not set forth a basis for
subject matter jurisdiction and failed to state a claim upon which relief could be granted.
Memorandum And Order (Doc. #138) at 3-4. This matter is before the Court on plaintiff’s Motion
For Reconsideration (Doc. #144) filed February 5, 2018, which asks the Court to set aside that order
pursuant to Rule 60(b), Fed. R. Civ. P.
Procedural Background
In his Report And Recommendation (Doc. #63) filed August 17, 2004, Judge O’Hara
summarized the suit’s relevant procedural history as follows:
Plaintiff claims that various conspirators, potentially numbering (he says)
literally in the hundreds of thousands, have engaged in an elaborate scheme to
conceal plaintiff’s true identity from him in order to deprive plaintiff of his
inheritance. Plaintiff asserts that his biological parents were killed by “adventurers”
and that he was raised by several different people who alternately assumed the
names Marguerite and Sherman Myzer; he also claims that Mr. and Mrs. Myzer

were not actually married, but that they maintained this facade for the sole purpose
of perpetrating a fraud on plaintiff.
Plaintiff names sixty-four separate defendants in his complaint and makes
several claims against some or all of the defendants. . . . Plaintiff has filed
approximately thirty-one motions to amend his complaint to join additional
defendants. These defendants include, but are not limited to, the United States
government, each of the fifty states of the union, the government of the United
Kingdom, every school plaintiff ever attended, every health and/or medical provider
who has ever treated plaintiff, and the entire food and beverage industry. In most
cases, specific parties are not named, and in all cases, no basis for jurisdiction or
even the residence of the proposed defendant is alleged.
Id. at 2. Further, Judge O’Hara stated that plaintiff (1) did not properly serve any defendants;
(2) refused to amend his complaint to satisfy Rule 8(a), Fed. R. Civ. P.; and (3) did not set forth any
basis for subject matter jurisdiction. Id. at 3-5, 7. On October 25, 2004, for reasons above, the
Court dismissed plaintiff’s complaint with prejudice. Memorandum And Order (Doc. #138) at 3-4.

More than 14 years after the Court entered judgment against him, plaintiff seeks
reconsideration pursuant to Rules 60(b)(4), (6), Fed. R. Civ. P. Memorandum In Support Of Motion
(Doc. #145) filed February 5, 2018 at 1-2. In particular, plaintiff argues that the judgment is void
because the Court lacked personal jurisdiction and did not afford him due process. Id. at 1-3. He
also asserts that the Court should set aside the judgment because “plaintiff lacked the capacity to
defend or understand his rights” during his suit. Id. at 4.
Legal Standard
The Court has discretion to grant or deny a motion to vacate judgment under Rule 60(b). See
Fed. Deposit Ins. Corp. v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998). Relief under
Rule 60(b) is extraordinary and may only be granted in exceptional circumstances. See Yapp v.
Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999). Under Rule 60(b), the Court may relieve a party
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from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
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.
Fed. R. Civ. P. 60(b).
Analysis
A motion under Rule 60(b) must be made within a reasonable time. Fed. R. Civ. P. 60(c).
Plaintiff filed his Motion For Reconsideration (Doc. #144) more than 14 years after the judgment
which he seeks to set aside. See Memorandum And Order (Doc. #138); see also Order (Doc. #143)
filed December 10, 2004 (dismissing appeal). Plaintiff’s delay appears unreasonable on its face.
See United States v. Taylor, 295 F. App’x 268, 270 (10th Cir. 2008) (ten-year delay between
judgment and Rule 60 motion unreasonable) (unpublished); see also Cummings v. General Motors
Corp., 365 F.3d 944, 954-55 (10th Cir. 2004) abrogated on other grounds by Unitherm Food Sys.
v. Swift-Eckrich, Inc., 546 U.S. 394, 399 (2006) (unreasonable to wait seven months after discovery
of new evidence); see also Sec. Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1067-68 (10th
Cir. 1980) (untimely when unexplained 115-day gap between Rule 60 motion and judgment).
Nevertheless, the Court must consider whether plaintiff has a “sufficient justification for the delay.”

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Cummings, 365 F.3d at 955. Plaintiff asserts that he “has remained in a disabling state of ignorance
and incapacity” from the time of his judgment until his Rule 60 motion. Memorandum In Support
(Doc. #145) at 4. Unsupported references to mental incompetence do not toll limitations periods.
See Smith v. Saffle, 28 F. App’x 759, 760 (10th Cir. 2001) (unpublished); see Biester v. Midwest
Health Servs., 77 F.3d 1264, 1268 (10th Cir. 1996) (must show “exceptional circumstances” for
tolling). Plaintiff’s vague, unsupported assertion does not justify the extensive gap between the
Court’s judgment and his Rule 60 motion. See Mukes v. Warden of Joseph Harp Corr. Ctr., 301
F. App’x 760, 762-64 (10th Cir. 2008) (Rule 60 motion untimely despite claims of mental
incompetence) (unpublished). Thus, the Court overrules plaintiff’s motion as untimely.1
IT IS THEREFORE ORDERED that plaintiff’s Motion For Reconsideration (Doc. #144)
filed February 5, 2018 is OVERRULED.

1

Alternatively, the motion lacks merit. Plaintiff seeks reconsideration pursuant to
Rule 60(b)(4) because the Court (1) lacked personal jurisdiction and (2) denied him due process.
First, plaintiff consented to the exercise of personal jurisdiction by choosing to file suit in the
District of Kansas. Rollins v. Ingersoll-Rand Co., 240 F. App’x 800, 802 (10th Cir. 2007)
(“plaintiff’s filing suit constitutes consent to a district court’s exercise of jurisdiction over him or
her”) (unpublished). Second, plaintiff contends that the Court denied him due process when it failed
to appoint a government official to serve process on defendants. This argument rests on the false
assertion that plaintiff filed suit in forma pauperis. See Fed. R. Civ. P. 4(c)(3) (plaintiff may request
service by appointed official if proceeding in forma pauperis); see also Order (Doc. #57) filed
August 3, 2004 at 4 (“[plaintiff] does not proceed in forma pauperis”) (emphasis in original).
Plaintiff also argues that the Court should set aside its judgment under Rule 60(b)(6) because
he “lacked the capacity to defend or understand his rights” during the original suit. The Tenth
Circuit has held that general claims of mental incompetence and ignorance of the law do not qualify
as “extraordinary cases” which justify Rule 60(b)(6) relief. See Klein v. United States, 880 F.2d
250, 259 (10th Cir. 1989); see Mukes, 301 F. App’x at 763; see Cothrum v. Hargett 178 F. App’x
855, 858-59 (10th Cir. 2006) (unpublished). Accordingly, plaintiff’s claims lack merit.
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Dated this 9th day of March, 2018 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

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