Mason v. Invision LLC et al

Filing 60

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff Harold B. Mason's Response to Order Motion Correct in accordance to F.R. Civ. P. 61 (Docket No. 41) is denied. Denying 41 Motion to Amend/Correct. Signed by Magistrate Judge Frederick R. Buckles on 1/4/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HAROLD B. MASON,

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Plaintiff,
v.
INVISION LLC, et al.,
Defendants.

Case No. 4:11CV575 FRB

MEMORANDUM AND ORDER
Presently before the Court is plaintiff Harold B. Mason’s
Response to Order Motion Correct in accordance to F.R. Civ. P. 61.
(Docket No. 41).

All matters are pending before the undersigned

United States Magistrate Judge, with consent of the parties,
pursuant to 28 U.S.C. § 636(c).
In the instant Motion, plaintiff asks the Court to vacate
its Order of February 29, 2012.

On that date, this Court entered

two orders, one denying plaintiff’s motion to appoint counsel, and
one granting a motion to strike filed by defendants. See (Docket
Nos. 37 and 38).

The undersigned notes that, while plaintiff

indicates that he intends to proceed herein under Rule 61 of the
Federal Rules of Civil Procedure, it appears that he actually
intends to proceed under Rule 60, which allows a party to seek
relief from a judgment or order under certain circumstances.

Rule

61, on the other hand, addresses harmless error, which would be
irrelevant to the relief plaintiff seeks in the instant Motion.
In the instant Motion, plaintiff asks the Court to vacate
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the February 29, 2012 Order(s) and “to give clarity as to if the
order addresses the claim in partiality as with the May 24, 2011
Order of Dismissal.”

(Docket No. 41 at page 2).

However,

plaintiff does not plead any facts tending to show the presence of
any

of

the

circumstances

noted

in

indicates that he did not receive

Rule

60.

Plaintiff

also

the motion to strike filed by

defendants, and writes, in the body of his Motion, that the Court
should change his mailing address, “effective immediately.”
Review of defendants’ previously-filed Motion To Strike
shows that defendants included thereon a certificate of service
indicating that a copy of the Motion was sent via the United States
Mail to plaintiff at his address of record on file at the time the
Motion To Strike was filed.
to

plaintiff

were

The law presumes that documents mailed

received

by

him,

and

insufficient to overcome this presumption.

his

mere

denial

is

See Stephenson v. El-

Batrawi, 524 F.3d 907, 913 (8th Cir. 2008) (citing In re Outboard
Marine Corp., 359 B.R. 893, 898 (N.D. Ill. 2007) (“[M]ere denial of
receipt of the summons and complaint falls short of what is
required to overcome the prima facie evidence of service.”).

If

plaintiff’s address had changed, it was plaintiff’s duty to advise
of that change.

See E.D. Mo. L.R. 2.06(B).

Plaintiff further

fails to state adequate grounds to “vacate” either of the Orders
entered on February 29, 2012.

Finally, to the extent plaintiff

seeks clarity regarding those Orders, plaintiff is advised that, on
February 29, 2012, this Court entered two Orders, one denying his
motion

seeking

the

appointment

of

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counsel,

and

one

granting

defendants’ Motion To Strike plaintiff’s Motion For Judgment.
Plaintiff is further advised that the latter Order did not deny his
Motion For Judgment on its merits, but merely struck it from the
record because plaintiff failed to file it in accordance with the
Federal Rules of Civil Procedure or the Local Rules of this Court.

Therefore,
IT IS HEREBY ORDERED that plaintiff Harold B. Mason’s
Response to Order Motion Correct in accordance to F.R. Civ. P. 61
(Docket No. 41) is denied.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 4th day of January, 2013.

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