Clark v. Wells Fargo Bank et al
MEMORANDUM AND ORDER - Plaintiff's 16 MOTION for New Trial of Entry Bad Judgment be denied.Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH W. CLARK,
MEMORANDUM AND ORDER
WELLS FARGO BANK, LISA C., Executive
Office Case Management; KATIE
THOMPSON, Banker; LISA LOMACK, and
W. RANDALL PARAGAS,
Before the Court is Plaintiff’s “Motion for New Trial of Entry Bad Judgment” (the
“Motion”). Filing No. 16. The Court construes Plaintiff’s filing either as a motion to alter
or amend judgment, filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure,
or as a motion for relief from judgment, filed pursuant to Rule 60(b). See Sanders v.
Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988) (where moving party fails to indicate
which provision of the Federal Rules of Civil Procedure he is relying upon in making his
motion to reconsider the judgment, court may treat it as a Rule 59(e) or Rule 60(b)
A Rule 59(e) motion “must be filed no later than 28 days after the entry of judgment.” Fed. R. Civ. P.
59(e). A Rule 60(b) motion need not be filed within a specific timeframe, and instead “must be made within
a reasonable time.” Fed. R. Civ. P. 60(c)(1). As Plaintiff’s Motion was filed on October 30, 2023, see Filing
No. 16, four days after the judgment of dismissal was entered, see Filing No. 15 (entered October 26, 2023),
the Motion is timely filed under either rule.
Rule 59(e) motions serve the limited function of correcting manifest errors of law
or fact or to present newly discovered evidence. United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006). Rule 60(b), has a much broader scope, providing
that a judgment may be set aside, inter alia, for “mistake, inadvertence, surprise, or
excusable neglect” or for “any other reason that justifies relief,” Fed. R. Civ. P.
Plaintiff’s case was dismissed as Plaintiff's complaint failed to state a claim against
any defendant upon which relief may be granted and as Plaintiff failed to comply with this
Court's Initial Review Order requiring Plaintiff to file an amended complaint that:
sufficiently describes his claims against each of the Defendants. Plaintiff
should be mindful to clearly explain why any of the Defendants meet the
“color of law” standard required as well as what each Defendant did to him,
when Defendant(s) did it, how each Defendant’s actions harmed him, and
what specific legal rights Plaintiff believes each defendant violated.
Filing No. 14 at 2 (quoting Filing No. 12 at 6).
It appears Plaintiff now seeks to set aside the judgment of dismissal and reopen
his case; however, the totality of Plaintiff’s Motion states the following: “Violation of Statue
law rules codes 440 civil rights breaking. The law of federal law 24-722 any Judge could
be removed for conviction.” Filing No. 16. As Plaintiff does not argue that he seeks to
reopen his case to correct an error of law or fact or to present newly discovered evidence,
Plaintiff’s Motion if brought under Rule 59(e) would fail. Rule 60(b), also offers no relief
as Plaintiff fails to argue that any “mistake, inadvertence, surprise, or excusable neglect”
would justify setting aside the judgment of dismissal. Fed. R. Civ. P. 60(b)(1)-(5).
Finally, even the catch all for “any other reason that justifies relief” of Rule 60(b)(6)
provides no basis for setting aside the judgment as Plaintiff’s Motion is simply
Plaintiff cites to various statutes in his motion and offers the
conclusion that “any judge could be removed” but gives no indication of how the cited
statutes relate to his case or how anything in his motion relates to setting aside the
judgment of dismissal.
For these reasons IT IS THEREFORE ORDERED: Plaintiff’s “Motion for New Trial
of Entry Bad Judgment,” Filing No. 16, is denied.
Dated this 15th day of November, 2023.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Court
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