Lee v. Ho et al

Filing 23

ORDER Denying 22 Motion of Objection. Signed by Judge James C. Mahan on 2/4/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:12-CV-884 JCM (GWF)

ROBIN M. LEE,

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Plaintiff,

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v.

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PETER HO, et al.,

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Defendants.

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ORDER

Presently before the court is pro se plaintiff’s motion of objection (doc. #22) to an

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order of dismissal (doc. # 20).

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I.

Background

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Plaintiff filed a complaint against several defendants on May 24, 2012. (Doc. # 1).

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Plaintiff then filed a motion for default judgment on June 18, 2012, prior to serving any of

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the defendants. (Doc. #4). On June 26, 2012, the court denied that motion because the

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defendants had not been served (doc. #8).1

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Plaintiff then filed a motion for entry of a clerk’s default on July 6, 2012. (Doc. #9).

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The court denied that motion, also, for failure to serve the defendants. (Doc. #10). Plaintiff

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filed another motion for default judgment. (Doc. #11). The court denied that motion because

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the plaintiff had yet to serve any defendant in this matter. (Doc. #12). The copy of the order

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James C. Mahan
U.S. District Judge

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The court also denied a separate and independent motion that was supplemental briefing
to plaintiff’s motion for default judgment.

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(doc. #12) mailed to plaintiff was returned as undeliverable. (Docs. ## 13-14).

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On October 5, 2012, the clerk’s office filed a notice of intent to dismiss the action due

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to plaintiff’s failure to provide proof of service on any party. (Doc. #17). On October 12,

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2012, the notice was returned as undeliverable. (Doc. # 18). On November 8, 2012, the

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court ordered the dismissal of this action because the plaintiff failed to comply with Federal

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Rule of Civil Procedure 4(m). (Doc. #20). On November 19, 2012, plaintiff’s copy of the

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order was returned as undeliverable. (Doc. #21). On November 26, 2012, plaintiff filed a

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motion of objection (doc. #22) to the order of dismissal (doc. #20).

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II.

Legal Standard
The court finds it necessary to provide the standard for various local rules and the

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Federal Rules of Civil Procedure.
A. Federal Rules of Civil Procedure Rule 4(m)

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Federal Rule of Civil Procedure 4(m) provides: “If a defendant is not served within 120

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days after the complaint is filed, the court—on motion or on its own after notice to the

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plaintiff—must dismiss the action without prejudice.” Fed.R.Civ.P. 4(m). Further, “[d]istrict

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courts have inherent power to control their dockets. In the exercise of that power they may

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impose sanctions including, where appropriate, default or dismissal.” Thompson v. Hous.

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Auth. of City of Los Angeles, 782 F.2d 829, 830 (9th Cir. 1986) (citing Link v. Wabash R.R.

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Co., 370 U.S. 626 (1961). The Ninth Circuit has “repeatedly upheld the imposition of the

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sanction of dismissal for failure to comply with pretrial procedures mandated by local rules

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and court orders.” Id. (internal citations omitted). “Courts have inherent equitable powers

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to dismiss actions or enter default judgments for failure to prosecute, contempt of court, or

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abusive litigation practices.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 916 (9th Cir.

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1987).

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B. Federal Rules of Civil Procedure Rules 59 and 60

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“A motion to alter or amend a judgment must be filed no later than 28 days after the entry

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of the judgment.” Fed.R.Civ.P. 59(e). The Ninth Circuit has held that a Rule 59(e) motion for

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James C. Mahan
U.S. District Judge

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reconsideration should not be granted “absent highly unusual circumstances, unless the district court

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is presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law.” Marlyn Nutraceuticals, Inc v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th

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Cir. 1999)).

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Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding only

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in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence; (3) fraud; (4) the final judgment is void; (5) the judgment has been satisfied;

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or (6) any other reason justifying relief from the judgment. Stewart v. Dupnik, 243 F.3d 549, 549

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(9th Cir. 2000); see also De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000)

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(noting that the district court’s denial of a Rule 60(b) motion is reviewed for an abuse of discretion).

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C. Local Rules LR IA 4-1 and LR 5-1(a)

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“The Court may, after notice and opportunity to be heard, impose any and all appropriate

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sanctions on an attorney or party appearing in pro se who, without just cause: [f]ails to comply with

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these Rules; or [f]ails to comply with any order of this Court.” LR IA 4-1.

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“All papers required or permitted to be served shall have attached, when presented for filing,

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a written proof of service. The proof shall show the day and manner of service and the name of the

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person served. Proof of service may be by written acknowledgment of service or certificate of the

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person who made service.” LR 5-1(a).

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III.

Discussion

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Pursuant to Federal Rule of Civil Procedure 4(m), on October 5, 2012, the clerk of the court

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provided notice to plaintiff that the action would be dismissed if plaintiff did not file proof of service

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of process by November 4, 2012. (Doc. # 17). On November 8, 2012, the court ordered the

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dismissal of the action for plaintiff’s failure to provide proof that any defendant had been served.

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(Doc. #20). To date, plaintiff has failed to provide proof of service on any defendant.

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Plaintiff’s current motion is an objection to the dismissal of his action. Since plaintiff is

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acting pro se, the motion is construed as motion under both Rule 59(e) and Rule 60(b). However,

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James C. Mahan
U.S. District Judge

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even after giving this pro se plaintiff every benefit of the doubt, his motion can not overcome the

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standards for reconsideration under either rule.

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Further, plaintiff was warned on four separate occasions of the requirement to serve the

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defendants. (See docs. ## 8, 10, 12, and 17). To date, plaintiff has failed to provide proof of service

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to any defendant for any of the filings made by plaintiff, as required by local rule 5-1.

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Plaintiff cannot in good faith say that he never received notice of this court’s prior orders or

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the clerk’s notice of intent to dismiss. It is true that all these mailings were returned to the court as

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undeliverable. However, it is also true that plaintiff managed to stay apprised of all pertinent

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happenings on the docket. For example, each time this court denied plaintiff’s motion for default

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judgment he filed another motion seeking the same relief. The dismissal of plaintiff’s lawsuit is

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because of plaintiff’s own failures to comply with the rules.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion of

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objection (doc. # 22) be, and the same hereby, is DENIED.
DATED February 4, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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