Baer v. Daley et al

Filing 24

MEMORANDUM AND ORDER denying 21 Motion for Relief from Judgment. Signed by District Judge Julie A. Robinson on 9/16/2013.Mailed to pro se party Bradford Lamar Daley by regular mail (daw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT L. BAER, Trustee,
Plaintiff,
v.
BRADFORD LAMAR DALEY, et al.,
Defendants.
__________________________________ )

)
)
)
)
)
)
)
)

Case No. 12-4086-JAR
Adversary Proceeding No. 11-07028

MEMORANDUM AND ORDER
Plaintiff Robert L. Baer, Chapter 7 Bankruptcy Trustee, filed suit against Defendant
Bradford Lamar Daley, alleging violations of the Kansas Credit Services Organization Act and
the Kansas Consumer Protection Act. Defendant failed to appear in the adversary action and this
Court ultimately adopted the Report and Recommendation of the United States Bankruptcy
Court granting Plaintiff’s motion for default judgment and entering judgment in favor of Plaintiff
(Docs. 7, 8). The Court subsequently denied Defendant’s Motion to Set Aside Entry of Default
and Default Judgment (Doc. 13), Motion to Stay All Proceedings (Doc.16), and Motion for
Reconsideration of the Court’s order denying his motion to stay all proceedings and Motion to
Extend deadlines in this case, including the time to file a notice of appeal (Doc. 20). This matter
is now before the Court on Defendant’s Motion for Relief from Judgment pursuant to Fed. R.
Civ. P. 60(b) (Doc. 21), requesting once again that this Court grant relief from default judgment
entered on July 24, 2012.
Rule 60(b) provides that the Court may relieve a party from a final judgment 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.1
Defendant presents no valid legal argument to warrant relief from the Court’s order.
Instead, he repeats his arguments raised in the previous motions that counsel failed to timely file
a response to the original complaint. Moreover, Defendant’s motion is untimely to the extent he
seeks relief under Rule 60(b)(1), (2) or (3),2 the judgment is not void under subsection (4), and
Defendant fails to set forth any evidence of extraordinary circumstances or injustice justifying
relief under Rule 60(b)(6).3 Accordingly, Defendant’s motion for relief is denied.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Relief from Judgment (Doc. 21) is DENIED.
Dated: September 16, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

1

Fed. R. Civ. P. 60(b).

2

See id, 60(c) (requiring motion seeking relief under subsections (1), (2), and (3) to be
brought no more than a year after the entry of the judgment).
3

Cashner v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir. 1996).
2

3