Hall v. State Farm Insurance et al
Filing
47
MEMORANDUM AND ORDER denying 44 Motion in Plenary Authority of the Civil Court to Preserve Defendant's Constitutional Rights To be Properly Served and Remedy an Error of the Court ; denying as moot 45 Motion of Summary Judgment for the 10th District Court; denying as moot 46 Motion to Strike. Signed by District Judge Carlos Murguia on 8/27/2018. Mailed to pro se party Rosemary Hall by regular mail. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROSEMARY HALL,
Plaintiff,
v.
STATE FARM INSURANCE, et al.,
Defendants.
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Case No. 17-2491
MEMORANDUM AND ORDER
Plaintiff Rosemary Hall was on her bicycle in Wylie, Texas when she was hit by a vehicle
driven by Erich Steinheimer (who is named as a defendant as “John Doe”). Mr. Steinheimer was
insured by defendant State Farm Mutual Automobile Insurance Company. Plaintiff brought this suit
because she is unhappy with how State Farm has handled her claim against its insured. She seeks
payment for her medical bills and for violation of her privacy rights.
On May 7, 2018, this court dismissed plaintiff’s case. Plaintiff filed an appeal with the Tenth
Circuit on May 23, 2018. Then, in July 2018, plaintiff filed a document titled “Motion in Plenary
Authority of the Civil Court to Preserve the Defendant’s Constitutional Rights to be Properly Served
and Remedy an Error of the Court” (Doc. 44). In August, plaintiff filed a second document with this
court—this one titled “Motion of Summary Judgment for the 10th District Court” (Doc. 45). This
second document was also sent to the Tenth Circuit, and appears to be addressed to that court.
The relief that plaintiff seeks with her first motion is somewhat unclear. The motion appears to
argue that the court erred in dismissing the case. Plaintiff also requests the following relief:
1. Order service on Erich Steinheimer;
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2. Sanction defendants for submitting a fraudulent document—the declaration of W.H.
Knight, Jr.;
3. Sanction defendants for erroneously stating that it had been three years since the
accident instead of two years;
4. Award plaintiff pro se fees for what she has had to endure; and
5. Award plaintiff other damages allowed under law.
For the court to grant plaintiff relief on ground 1 or 5 above, the court would have to set aside
the judgment in this case. Plaintiff filed her motion more than twenty-eight days after judgment was
entered, so the court would need to construe her motion as one under Rule 60(b). Plaintiff, however,
has not shown a valid basis for granting relief from judgment under Rule 60(b). Under Rule 60(b), the
court may grant relief from judgment for “(1) mistake, inadvertence, surprise, or excusable neglect; . . .
(3) fraud . . . misrepresentation, or misconduct by an opposing party; . . . or (6) any other reason that
justifies relief.” Plaintiff has not identified the basis on which she wants the court to grant relief from
judgment, but these three options seem the most likely, given plaintiff’s allegations of error, fraud, and
misconduct.
None of the arguments in plaintiff’s motion justify Rule 60(b) relief. Relief is only proper
under Rule 60(b) in “exceptional circumstances.” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991) (citation omitted). Whether to grant or deny a 60(b) motion is committed to the
court’s discretion. Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1145 (10th Cir. 1990). 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)).
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Plaintiff already has filed her appeal, and her arguments appear to be a reiteration of why dismissal of
her case was not warranted. No relief is warranted under Rule 60(b)(1).
As for plaintiff’s allegations of fraud and misconduct, to receive relief under Rule 60(b)(3), a
litigant must prove misconduct by clear and convincing evidence. Anderson v. Dep’t of Health &
Human Servs., 907 F.2d 936, 952 (10th Cir. 1990). Plaintiff has not met this burden. The attachments
of certified mail receipts do not provide clear and convincing evidence that Mr. Knight made
fraudulent statements in his declaration in support of dismissal.
Rule 60(b)(6) permits relief for “any other reason justifying relief.” Subsection (6) is the rule’s
“catchall” provision. It is reserved for situations in which it “offends justice” to deny relief, Loum v.
Houston’s Rests., Inc., 177 F.R.D. 670, 672 (D. Kan. 1998), and applies only in “extraordinary
circumstances,” Van Skiver, 952 F.2d at 1244–45 (citation omitted). Extraordinary circumstances are
not present here. Plaintiff disagrees with the court’s assessment of her case. But disagreement with an
outcome does not present the extraordinary circumstances necessary to justify relief under Rule
60(b)(6).
As for plaintiff’s requests 3 and 4, the court determines that sanctions are not appropriate. As
noted above, plaintiff’s evidence attached to her motion does not show that the declaration of W.H.
Knight, Jr., was fraudulent. And defendants acknowledged that they erroneously stated that the
accident was three years prior (instead of two) in a court document. (Doc. 26.) No basis exists to
sanction any party for misconduct.
Finally, plaintiff asks for “pro se fees” because she has operated at a disadvantage in this case
(i.e., without counsel) and defendants acted with a lack of candor. While this case was pending,
plaintiff asked for appointment of counsel three times. The first two times, Judge Rushfelt carefully
reviewed the law for appointing counsel and thoroughly evaluated whether plaintiff met the standards
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in this case. The third time, the court denied the request as moot because the case was simultaneously
being dismissed. There is no legal basis for awarding fees of any type to plaintiff because she was not
entitled to appointment of counsel. Furthermore, the court will not award fees based on the conduct of
defendants. While defendants may have initially made a mistake in referring to the time of the
accident, they corrected that mistake in the record before the court issued its rulings—rulings that
referred to the timing of the lawsuit only when determining whether to transfer the case sua sponte.
As for Doc. 45, the request is directed to the Tenth Circuit instead of this court. Plaintiff
appears to have sent a courtesy copy to this court and the document was construed and filed as a
motion. Because plaintiff’s request for relief is directed to the Tenth Circuit, and plaintiff already has
an appeal pending, the court denies Doc. 45 as moot. Defendants’ corresponding motion to strike Doc.
45 (Doc. 46) is also denied as moot.
IT IS THEREFORE ORDERED that plaintiff’s motion titled “Motion in Plenary Authority
of the Civil Court to Preserve the Defendant’s Constitutional Rights to be Properly Served and
Remedy an Error of the Court” (Doc. 44), which the court has construed in part as a Motion for Relief
from Judgment under Rule 60(b), is denied.
IT IS FURTHER ORDERED that plaintiff’s motion titled “Motion of Summary Judgment for
the 10th District Court” (Doc. 45) is denied as moot, as is defendants’ corresponding motion to strike
(Doc. 46).
Dated this 27th day of August, 2018, at Kansas City, Kansas.
s/ Carlos Murguia_____________
CARLOS MURGUIA
United States District Judge
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