Mehner Family Trust et al v. Department of Homeland Security et al

Filing 55

MEMORANDUM AND ORDER - Andrea Mehner's Motion to Set Aside Judgment (filing no. 51 ) is granted, but only as to her claims against Defendants. Defendants shall have 20 days from the date of this Memorandum and Order to answer or otherwise resp ond to Andrea Mehner's claims against them. The clerk's office is directed to reopen this matter, but only as to Plaintiff Andrea Mehner's claims against Defendants. The clerks office is directed to set a pro se case management deadline in this case using the following text: September 6, 2011: Deadline for Defendants to answer or otherwise respond to Complaint. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDREA L. MEHNER,
Plaintiff,
v.
DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.

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4:10CV3009

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Andrea Mehner’s Motion to Set
Aside Judgment (filing no. 51), which the court liberally construes as a Motion for
Relief From Judgment pursuant to Federal Rule of Civil Procedure 60(b)(1). For the
reasons set forth below, Andrea Mehner’s Motion is granted, but only as to her claims
against Defendants.
A.

Motion Considered as to Andrea Mehner
Andrea Mehner filed her Motion for Relief From Judgment on behalf of herself

and, purportedly, also on behalf of Raymond Mehner, Barbara Mehner, Mark Mehner,
and Anthony Mehner. (Filing No. 51 at CM/ECF p. 1.) However, Andrea Mehner
was the only Plaintiff to sign the Motion. As such, the court will only consider the
Motion as to Andrea Mehner. See Rule 11 of the Federal Rules of Civil Procedure
(requiring that every pleading be signed by the party filing it, or by that party’s
attorney); see also Scarrella v. Midwest Federal Sav. And Loan, 536 F.2d 1207, 1209
(8th Cir. 1976) (“Rule 11 of the Federal Rules of Civil Procedure requires that every
pleading be signed by the party filing it, or by that party’s attorney. Here the notice
of appeal, which was purported to be on behalf of all appellants, was signed only by
appellant Scarrella, who is not an attorney. Since appellants Bullock and Brisson did
not sign the notice of appeal, their appeals must be dismissed.”).

B.

Motion Granted Based on Excusable Neglect
Andrea Mehner’s Motion asks the court to set aside its judgment pursuant to

Federal Rule of Civil Procedure 60(b)(1) because she did not receive notice of the
court’s April 26, 2011, Memorandum and Order, which required all Plaintiffs to file
a signed notice of their intent to proceed pro se in this matter. Federal Rule of Civil
Procedure 60(b)(1) provides that “[o]n motion and just terms, the court may relieve
a party or its legal representative from a final judgment, order, or proceeding for . . .
excusable neglect.”
Here, the court has carefully reviewed Andrea Mehner’s Motion and
Defendants’ Briefs in Opposition and finds that her Motion should be granted because
the zip code listed in this court’s records for Andrea Mehner was incorrect.1
Accordingly, the court relieves Andrea Mehner of the court’s June 1, 2011, judgment
based on excusable neglect.
IT IS THEREFORE ORDERED that:
1.

Andrea Mehner’s Motion to Set Aside Judgment (filing no. 51) is

granted, but only as to her claims against Defendants.
2.

Defendants shall have 20 days from the date of this Memorandum and

Order to answer or otherwise respond to Andrea Mehner’s claims against them.
3.

The clerk’s office is directed to reopen this matter, but only as to Plaintiff

Andrea Mehner’s claims against Defendants.

1

The zip code listed in this court’s records for Andrea Mehner was 68514. It
appears from Andrea Mehner’s filings that her zip code is actually 68154. (See
Filing No. 51.) The court notes that the court’s records have now been corrected.
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4.

The clerks office is directed to set a pro se case management deadline in

this case using the following text: September 6, 2011: Deadline for Defendants to
answer or otherwise respond to Complaint.
DATED this 17 th day of August, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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