Davis v. State of California et al

Filing 49

MEMORANDUM AND ORDER denying 42 Motion for Relief; granting 47 Motion for Leave to Amend and Correct; denying 48 Motion to Disqualify Judge. Signed by Chief District Judge Julie A Robinson on 1/17/18. Mailed to pro se party Ronald E. Davis by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONALD E. DAVIS,
Plaintiff,
v.

Case No. 17-2125-JAR-JPO

STATE OF CALIFORNIA, et al.,
Defendants.

MEMORANDUM AND ORDER
On October 20, 2017, the Court issued a Memorandum and Order in this case granting
Defendants State of California and California Franchise Tax Board’s (“CFTB”) Motions to
Dismiss, and denying as moot Defendants State of California and CFTB’s Motion for Summary
Judgment (Doc. 40). The Court also ordered Plaintiff to show cause by no later than November
13, 2017 why Defendant California State Agency Insurer should not be dismissed because it is a
fictional entity and because Plaintiff failed to effect proper service of process under Fed. R. Civ.
P. 4. This matter comes before the Court on Plaintiff’s Motion for Relief from Judgment (Doc.
42), “Motion for Leave of Court to Amended [sic] and Correct Typo Error in Reference to Prior
Supreme Court Reference” (Doc. 47), and Motion for Disqualification of Judge (Doc. 48). The
Government responded to Plaintiff’s motion for relief from judgment, but not his two other
motions. The Court is now prepared to rule. For the reasons explained below, the Court denies
Plaintiff’s motion for relief from judgment, grants his motion for leave to correct typo, and
denies his motion for disqualification of judge. Additionally, because Plaintiff has failed to show
cause why Defendant California State Agency Insurer should not be dismissed, the Court
dismisses California State Agency Insurer from this case. Accordingly, this case is dismissed in
its entirety.

I.

Order to Show Cause
In its Memorandum and Order issued on October 20, 2017, the Court noted Defendants’

argument that Defendant California State Agency Insurer does not exist, and explained that it
appeared Plaintiff had not properly served this Defendant under Fed. R. Civ. P. 4. Accordingly,
the Court ordered Plaintiff to show cause by no later than November 13, 2017 why this
Defendant should not be dismissed from this case.1 The time for Plaintiff to respond to the
Court’s order has long passed without a response from Plaintiff. Therefore, the Court dismisses
California State Agency Insurer from this case.
II.

Motion for Leave to Correct Typo
Plaintiff moves for leave to correct a reference to Monroe v. Pape2 he apparently made in

his reply in support of his motion for relief from judgment.3 Plaintiff states he incorrectly
referred to the case as “Monroe v. Tate.” For good cause, the Court grants Plaintiff’s motion.
Rather than directing Plaintiff to file an amended reply brief, the Court simply recognizes that
the case Plaintiff refers to in his reply is Monroe v. Pape.
III.

Motion for Relief from Judgment
Plaintiff moves for relief from judgment4 under Fed. R. Civ. P. 60(b). “Relief under Rule

60(b) is extraordinary and limited to certain exceptional circumstances.”5 Under Rule 60(b),

1

Doc. 40 at 11.

2

365 U.S. 167 (1961).

3

Plaintiff states that he made the typo in a “prior answer.” Doc. 47-1. However, Plaintiff appears to be
referring to his reply brief, which refers to “Monroe v. Tate” on multiple pages. See Doc. 46 at 3, 6–10.
4

The Court did not enter a judgment in this case following the Order granting Defendants State of
California and CFTB’s motions to dismiss because Plaintiff still had a live claim against Defendant California State
Agency Insurer. Thus, while Plaintiff’s motion is styled as a motion for relief from judgment, the Court construes
the motion as one for relief from the Court’s Order granting Defendants’ motions to dismiss.

2

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 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.
“Thus, a motion for reconsideration [or motion for relief from judgment] is
appropriate where the court has misapprehended the facts, a party’s position, or the
controlling law.”6 A party’s failure to present its strongest case in the first instance does
not entitle it to a second chance in the form of a motion for relief from judgment or
motion for reconsideration.7 Whether to grant a motion for relief from judgment under
Rule 60(b) is left to the Court’s discretion.8
Plaintiff generally cites “overreach of authority, obstruction of process, [and]
violation of the plaintiffs [sic] due process and prior case law” as bases for relief from the
Court’s judgment.9 Plaintiff also repeatedly argues that sovereign immunity and the
principle of comity do not apply to this case. Additionally, Plaintiff argues “the court has

5

United States v. Johnson, 934 F. Supp. 383, 385 (D. Kan. 1996) (citing Nutter v. Wefald, 885 F. Supp.
1445, 1449 (D. Kan. 1995)).
6

Servants of Paracelete v. Does, 304 F.3d 1005, 1012 (10th Cir. 2000) (citing Brunmark Corp. v. Samson
Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
7

Turner v. Nat’l Council of State Bds. Of Nursing, Inc., No. 11-2059-KHV, 2013 WL 139750, at *1–2 (D.
Kan. Jan. 10, 2013) (citing Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005),
aff’d, 191 F. App’x 822 (10th Cir. 2006)).
8

Johnson, 934 F. Supp. at 385 (citing Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1145–46 (10th Cir.

9

Doc. 42 at 1.

1990)).

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violated the petitioner [sic] right to diversity.”10 Finally, he asserts the Court’s previous
Order is a “void judgment.”11
Having considered Plaintiff’s arguments, the Court finds there are no “exceptional
circumstances” as set forth under Rule 60(b) to warrant relief from the Court’s previous
Order. Plaintiff’s arguments of fraud, void judgment, and general “overreach of
authority” are conclusory and not supported by any specific factual assertions or
arguments by Plaintiff. Additionally, Plaintiff’s arguments regarding the application of
sovereign immunity and the principle of comity are simply rehashes of arguments he
made in opposing Defendants’ motions to dismiss and which the Court thoroughly
considered in its previous Memorandum and Order.12 Accordingly, the Court finds that
relief from the previous Order is not warranted. Plaintiff’s motion for relief from
judgment is denied.
IV.

Motion for Disqualification of Judge
Under 28 U.S.C. § 455(a), “any justice, judge, or magistrate judge of the United

States shall disqualify [herself] in any proceeding in which [her] impartiality might
reasonably be questioned.” Section 455(b)(1) provides that a judge must also recuse
herself where she “has a personal bias or prejudice concerning a party.” Plaintiff argues
the Court ignored his arguments in his response to Defendants’ summary judgment
motion, and “only looked at bits and pieces of the entire context of the case.”13 The
Court did not consider Plaintiff’s or Defendants’ arguments in their summary judgment

10

Id. at 13.

11

Id. at 6, 13.

12

See Doc. 40 at 4–10.

13

Doc. 48 at 1–3.

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briefings because the Court found this motion moot. The Court had previously granted
Defendants’ motions to dismiss, and thus a ruling on the summary judgment motion was
unnecessary.14 Defendant further argues that the Court “failed to acknowledge” certain
cases that he argues support his position and engaged in “erroneous error and application
of law.”15 As explained above, the Court thoroughly considered the arguments Plaintiff
made in his responses to Defendants’ motions to dismiss.16 Plaintiff’s arguments that the
Court committed error or ignored his arguments are conclusory. Furthermore, even if the
Court found that it had misapprehended the law, this alone does not provide a basis for
disqualification from a case.17 Accordingly, the Court denies Plaintiff’s motion for
disqualification.
IT IS THEREFORE ORDERED BY THE COURT that Defendant California State
Agency Insurer is dismissed from this case.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s Motion for Relief
from Judgment (Doc. 42) is denied.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s “Motion for Leave of
Court to Amended [sic] and Correct Typo Error in Reference to Prior Supreme Court Reference”
(Doc. 47) is granted.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s Motion for
Disqualification of Judge (Doc. 48) is denied.
IT IS SO ORDERED.
14

See, e.g., Lydbrook v. Members of Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1336 (10th Cir.
2000) (describing how district court granted motion to dismiss and denied motion for summary judgment as moot).
15

Id.

16

See Doc. 40.

17

See 28 U.S.C. § 455.

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Dated: January 17, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

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