Yarbary v. Martin, Pringle, Oliver, Wallace & Bauer L.L.P. et al

Filing 189

MEMORANDUM AND ORDER denying plaintiff Kristopher Yarbary's 174 Motion for Relief from an Order, and 177 Motion for Relief from Judgment. Signed by District Judge Carlos Murguia on 06/11/2014. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRISTOPHER YARBARY,
Plaintiff,
v.
MARTIN, PRINGLE, OLIVER,
WALLACE & BAUER, L.L.P., et al.,
Defendants.

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Case No. 12-2773-CM

MEMORANDUM AND ORDER
Following dismissal of his case, pro se plaintiff Kristopher Yarbary filed two nearly-identical
motions seeking relief: plaintiff’s Motion for Relief from an Order (Doc. 174) and plaintiff’s Motion
for Relief from [] Judgment (Doc. 177). In both motions, plaintiff asks the court to apply Federal Rule
of Civil Procedure 60(b)(6) to grant him relief, including: (1) recusal of the undersigned judge; (2) an
order requiring defendants to answer the complaint; and (3) an order striking this court’s orders of
dismissal for both plaintiff and his brother, Ralph Mabone.
Rule 60(b)(6)—which is the last subsection in Rule 60(b)’s list of reasons a court may relieve a
party from a judgment or order—gives the court authority to grant a party relief based on “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). This is known as the “catch all” provision of
Rule 60(b), and offers relief only in extraordinary circumstances. Loum v. Houston’s Rests., Inc., 177
F.R.D. 670, 672 (D. Kan. 1998) (citations omitted). Parties should not use Rule 60(b) as a platform to
present their arguments a second time or as a substitute for an appeal. See generally Cashner v.
Freedom Stores, Inc., 98 F.3d 572, 576–77 (10th Cir. 1996) (indicating that subsection (b)(1) of Rule
60 should not be used to reargue an issue (citations omitted)). The court reserves Rule 60(b)(6) relief
for situations in which it “offends justice” to deny relief. Loum, 177 F.R.D. at 672 (citation omitted).

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Plaintiff’s motions do not present a valid basis for Rule 60(b)(6) relief. Ultimately, plaintiff
disagrees with this court’s decisions. He believes that the court erred in its standing analysis; that the
court misunderstands the use of the term “conviction” in 29 U.S.C. § 1111(c)(1); that the court
exceeded its authority in a number of ways; and that the undersigned judge has been unfair and biased
in his decisions. Plaintiff’s briefs in support of his motions are essentially a reworded and reorganized
presentation of the same arguments he made before the court dismissed his claims and denied his
motion to recuse.
In the court’s order issued April 25, 2014, the court considered plaintiff’s arguments on these
issues and rejected them. In some instances, the court may not have discussed an argument at length or
to plaintiff’s satisfaction. But this does not mean that the court overlooked that argument or the law
governing that issue. To the contrary, the court has considered thoughtfully and meaningfully all
points and issues that plaintiff has raised throughout this case. Plaintiff offers nothing in his current
motions to suggest that this case presents the extraordinary circumstances that may justify Rule
60(b)(6) relief. The court therefore denies his motions.
IT IS THEREFORE ORDERED that plaintiff’s Motion for Relief from an Order (Doc. 174)
is denied.
IT IS FURTHER ORDERED that plaintiff’s Motion for Relief from [] Judgment (Doc. 177)
is denied.
Dated this 11th day of June, 2014, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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