McKinnon et al v. NDEX West, LLC
Filing
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ORDER denying 49 Motion to Vacate and for relief from a judgment. Denying 50 Motion to alter or amend judgment. Denying 53 Emergency Motion to report a crime. Signed by Judge James C. Mahan on 9/5/2012. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THOMAS MCKINNON and GERI
MCKINNON,
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2:12-CV-329 JCM (VCF)
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Plaintiffs,
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v.
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ONEWEST BANK, FSB, et al.,
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Defendants.
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ORDER
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Presently before the court is pro se plaintiffs Geri and Thomas McKinnon’s motion to vacate
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and for relief from a judgment. (Doc. # 49). Defendants Onewest Bank, FSB et al. filed an
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opposition. (Doc. # 55). Plaintiffs then filed a reply. (Doc. # 57).
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Also before the court is plaintiffs’ motion to alter or amend judgment. (Doc. # 50).
Defendants filed an opposition. (Doc. # 52). Plaintiffs then filed a reply. (Doc. # 54).
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Lastly, before the court is plaintiffs’ emergency motion to report a crime. (Doc. # 53).
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Defendants filed an opposition. (Doc. # 56). Plaintiffs then filed a reply. (Doc. # 58).
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I.
Procedural History
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On February 29, 2012, plaintiffs filed the instant case for wrongful foreclosure. (McKinnon,
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et. al. v. NDEX West, LLC, case number 2:12-cv-329-JCM-VCF, Doc. # 1). This is the second
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lawsuit between these same parties; it involves the same property and the same alleged wrongful
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conduct. Compare McKinnon, et. al. v. IndyMac Bank F.S.B., et. al., case number 2:11-cv-607-KJD-
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James C. Mahan
U.S. District Judge
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GWF and McKinnon, et. al. v. NDEX West, LLC, case number 2:12-cv-329-JCM-VCF. On January
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23, 2012, United States District Court Judge Dawson entered an order dismissing plaintiffs’ first
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lawsuit on the merits. (McKinnon, et. al. v. IndyMac Bank F.S.B., et. al., case number 2:11-cv-607-
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KJD-GWF, Doc. #47). On June 19, 2012, this court dismissed the instant case pursuant to the
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doctrine of claim preclusion. (Doc. # 43.)
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Plaintiffs filed two motions to obtain relief from the court’s order dismissing the action and
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one motion to report a crime. The court will address each motion in turn.
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II.
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Motions
A.
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Motion to Vacate (Doc. # 49)
1.
Legal Standard
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A motion for relief from a judgment or order may be brought if movant can show: (1)
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mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with
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reasonable diligence could not have been discovered in time to move for a new trial; (3) fraud,
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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment
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has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed
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or vacated; or applying it prospectively is no longer equitable; and (6) any other reason that justifies
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relief. FED. R. CIV. P. 60(b), see also Backland v. Barnhart, 778 F.2d 1386, 1388 (1985). Relief
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under exception six requires a finding of “extraordinary circumstances.” Id. (citing McConnell v.
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MEBA Medical & Benefits Plan, 759 F.2d 1401, 1407 (9th Cir.1985)). “A motion for reconsideration
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is not an avenue to re-litigate the same issues and arguments upon which the court already has
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ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005); see Merozoite
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v. Thorp, 52 F.3d 252, 255 (9th Cir. 1995). “A party cannot have relief under this rule merely
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because he or she is unhappy with the judgment.” Khan v. Fasano, 194 F.Supp.2d 1134, 1136 (S.D.
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Cal. 2001).
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2.
Analysis
Plaintiffs specifically argue that the court’s order should be vacated under Federal Rule of
Civil Procedure 60(b)(2), (3), (4), and (6).
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James C. Mahan
U.S. District Judge
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a.
Newly discovered evidence
In order to form a basis for relief from judgment, newly discovered evidence must, inter alia,
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be likely to produce a different outcome. Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th
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Cir.1990).
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Plaintiffs’ complaint was dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
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When examining a complaint for failure to state a claim upon which relief can be granted, the court
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looks only to the sufficiency of the complaint. Thus, the court takes all factual allegations as true and
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does not consider evidence. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
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Further, plaintiffs’ claims were dismissed under the doctrine of claim preclusion. Claim
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preclusion “bars litigation in a subsequent action of any claims that were raised or could have been
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raised in the prior action.”Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.
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2001) (quoting Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)).
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To the extent that plaintiffs argue that newly discovered evidence warrants relief from this
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court’s judgment, evidence is neither relevant nor admissible for a motion to dismiss. Further, no
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new material evidence would impact the court’s decision to dismiss the case under claim preclusion.
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Thus, the court finds that relief on this basis is inappropriate.
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b.
Fraud
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“To prevail, the moving party must prove by clear and convincing evidence that the verdict
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was obtained through fraud, misrepresentation, or other misconduct and the conduct complained of
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prevented the losing party from fully and fairly presenting the defense.” De Saracho v. Custom Food
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Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). “Federal Rule of Civil Procedure 60(b)(3)
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require[s] that fraud ... not be discoverable by due diligence before or during the proceedings.” Pac.
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& Arctic Ry. and Navigation Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir.1991).
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Plaintiffs have not met their burden of demonstrating by “clear and convincing evidence” that
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defendants obtained dismissal of this action through “fraud, misrepresentation, or other misconduct
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. . .” De Saracho, 206 F.3d at 880. The court dismissed this action on the basis of claim preclusion;
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there is nothing on the docket that indicates that plaintiffs were not given an opportunity to present
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James C. Mahan
U.S. District Judge
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their case. If anything, plaintiffs were given numerous opportunities to make their case against
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defendants. Thus, any allegation of fraud is unsubstantiated and does not warrant relief on this
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ground.
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c.
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Void judgment
“[A] void judgment is one so affected by a fundamental infirmity that the infirmity
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may be raised even after the judgment becomes final.” U. Student Aid Funds, Inc. v. Espinosa,
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130 S. Ct. 1367, 1377 (2010). Generally, a judgment is only void where the court lacked
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jurisdiction. Id.
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Plaintiffs do not argue that the court lacked jurisdiction. Instead, they argue that the judgment
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is void because they were denied the opportunity to present evidence. The Federal Rules of Civil
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Procedure give courts broad authority to dismiss complaints that fail to state a claim. See FED. R.
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CIV. P. 12(b) and 8(a). Plaintiffs have not shown any fundamental infirmity that would cause the
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judgment to be void. Accordingly, reconsideration on this basis is denied.
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d.
Any other reason that justifies relief
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“In order to bring himself within the limited area of Rule 60(b)(6) a petitioner is required to
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establish the existence of extraordinary circumstances which prevented or rendered him unable to
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prosecute an appeal.” Martella v. Marine Cooks & Stewards Union, Seafarers Int'l Union of N. Am.,
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AFL–CIO, 448 F.2d 729, 730 (9th Cir.1971).
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Plaintiffs have already had their chance to litigate their case and have not provided the court
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with any reason to afford plaintiffs relief under Federal Rule of Civil Procedure 60(b)(6). As
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discussed, this court dismissed this action under the doctrine of claim preclusion. Plaintiffs argue
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that they were unable to present evidence; however, that is not relevant to the basis upon which this
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court dismissed plaintiffs’ action. Plaintiff have not provided the court with any reason why the
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doctrine of claim preclusion does not apply, thus there appears no reason for the court to afford relief
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on this ground.
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...
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...
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James C. Mahan
U.S. District Judge
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B.
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Motion to Alter or Amend Judgment (Doc. # 50)
1.
Legal Standard
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Under Federal Rule of Civil Procedure 59(e), a party may move to have the court amend its
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judgment within twenty-eight days after entry of the judgment.“Since specific grounds for a motion
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to amend or alter are not listed in the rule, the district court enjoys considerable discretion in granting
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or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc)
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(per curiam) (internal quotation marks omitted). But amending a judgment after its entry remains “an
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extraordinary remedy which should be used sparingly.” Id. (internal quotation marks omitted). In
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general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such
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motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if
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such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such
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motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an
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intervening change in controlling law. Id.
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2.
Analysis
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While the court is not limited to the four situations articulated in McDowell; even in its broad
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discretion, the court does not find that amending the judgment is appropriate under these
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circumstances. In the June 19, 2012, order the court dismissed the action on the basis of claim
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preclusion. Plaintiffs have not provided any sufficient basis upon which the court should revisit the
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issue. The court’s order addressed the second lawsuit between the same parties, involving the same
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property, and the same alleged wrongful conduct. There is no reason to believe that new material
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evidence would impact the court’s determination of the applicability of claim preclusion. Thus the
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court does not find that plaintiffs’ case warrants this “extraordinary remedy.” McDowell, 197 F.3d
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at 1255 n. 1.
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C.
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Plaintiffs claim that the promissory note relating to their mortgage is a forgery and seek to
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Emergency Motion to Report a Crime (Doc. # 53)
report various crimes pursuant to federal statutes.
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James C. Mahan
U.S. District Judge
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This motion is not proper and the court will not entertain it. Crimes are to be reported to law
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enforcement, not to courts. This motion appears to be designed to harass defendants and waste the
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time of the court. Plaintiffs are warned that further improper motions of this type will result in the
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court ordering plaintiffs to pay the costs and fees incurred by defendants in responding to such
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motions.
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III.
Conclusion
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED the plaintiff’s motion to vacate
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and for relief from a judgment (doc. # 49), plaintiffs’ motion to alter or amend judgment (doc. # 50),
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and plaintiffs’ emergency motion to report a crime (doc. # 53) be, and the same hereby are, DENIED.
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DATED September 5, 2012.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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