Anderson v. White et al

Filing 92

ORDER Denying 84 Motion for Relief. Signed by Judge James C. Mahan on 8/24/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARK ANDERSON,

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Plaintiff(s),

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Case No. 2:13-CV-2097 JCM (VCF)
ORDER

v.
WESLEY S. WHITE, et al.,

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Defendant(s).

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Presently before the court is plaintiff Mark Anderson’s motion for relief from the order

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dismissing the case. (ECF No. 84). Defendants Wesley White and Thomas Gibson filed a

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response (ECF No. 86), to which plaintiff replied (ECF No. 87).

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I.

Facts

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Plaintiff retained defendant White to represent him in a dissolution of marriage proceeding

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against his former wife. (ECF No. 1 at 10). Defendant filed the divorce complaint on plaintiff’s

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behalf on March 30, 2012. (ECF No. 1 at 11).

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Defendant agreed to participate in a settlement conference before the Honorable Robert

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Gaston on May 9, 2012. (ECF No. 1 at 11). At the settlement conference, plaintiff and his then-

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wife signed a memorandum of understanding (“MOU”), which outlined a settlement. (ECF No. 1

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at 11). Later, plaintiff alleged that the “Wilson property” was improperly disposed of in the MOU.

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(ECF No. 1 at 11).

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Shortly after the settlement conference, plaintiff terminated his relationship with defendant

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and retained replacement counsel. (ECF No. 1 at 12). On June 29, 2012, counsel for plaintiff’s

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former wife filed a motion to enforce settlement. (ECF No. 1 at 12). Plaintiff’s replacement

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counsel filed an opposition to motion to enforce settlement and countermotion to set aside and

James C. Mahan
U.S. District Judge

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deem the MOU unenforceable, which was unsuccessful.

(ECF No. 1 at 12).

Thereafter,

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replacement counsel appealed the judge’s order granting the motion to enforce settlement. (ECF

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No. 1 at 34–36). The Nevada Supreme Court affirmed the judgment of the district court. Anderson

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v. Sanchez, 373 P.3d 860 (Nev. 2016).

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Plaintiff alleged that defendant committed malpractice by advising plaintiff that the

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“Wilson property” was likely to be adjudicated was likely to be adjudicated as community

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property. (ECF No. 1). As a result, plaintiff initiated this action in state court on September 3,

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2013, asserting six causes of action: (1) legal malpractice; (2) breach of contract; (3) breach of

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fiduciary duty; (4) breach of implied covenant of good faith and fair dealing; (5) negligent

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infliction of emotional distress; and (6) vicarious liability. (ECF No. 1). Defendant removed the

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action to this court on November 14, 2013. (ECF No. 1).

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Subsequently, defendant moved for summary judgment or in the alternative to dismiss

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under Federal Rule of Civil Procedure 12(b)(1). (ECF No. 40). The court found that the matter

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was not ripe for adjudication and that the court lacked subject matter jurisdiction. (ECF No. 71).

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Accordingly, the court granted defendant’s motion to dismiss under Rule 12(b)(1) and dismissed

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plaintiff’s complaint without prejudice. (ECF No. 71). Thereafter, plaintiff filed a notice of appeal

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(ECF No. 75), which he later dismissed (ECF Nos. 88, 91).

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In the instant motion, plaintiff moves for Rule 60(b)(5) relief from the court’s order

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dismissing plaintiff’s complaint without prejudice (ECF No. 71) and requests that the case be

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reopened and the award of costs be vacated.

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II.

Legal Standard

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Federal Rule of Civil Procedure 60(b) provides, in relevant part, that the court may relieve

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a party from an order for the following reasons: “(5) the judgment has been satisfied, released or

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discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it

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prospectively is no longer equitable; or (6) any other reason that justifies relief.”

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III.

Discussion

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Citing to Rule 60(b)(5), plaintiff contends that relief is proper because the underlying case

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is now ripe. (ECF No. 84 at 3). Specifically, plaintiff argues that “pursuant to . . . Rule 60[b](5)

James C. Mahan
U.S. District Judge

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the basis for the decision that the case was not ripe has been reversed by the decision of the Nevada

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Supreme Court.” (ECF No. 84 at 4). The court disagrees.

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Plaintiff’s argument misstates the basis for dismissal of his complaint in the court’s order.

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The court dismissed plaintiff’s complaint because the matter was not ripe for adjudication and the

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court lacked subject matter jurisdiction. (ECF No. 71). Plaintiff’s complaint was dismissed

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without prejudice, and plaintiff fails to set forth any argument as to the applicability of Rule

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60(b)(5) to his case or any facts that would warrant relief under Rule 60(b).

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Accordingly, the court declines to reopen plaintiff’s case and grant plaintiff relief from

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judgment. Because plaintiff’s complaint was dismissed without prejudice, the court finds no

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reason to reopen the instant action. In light of the foregoing, there is also no reason to address

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plaintiff’s request to vacate the award of costs.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for

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relief from the order dismissing the case (ECF No. 84) be, and the same hereby is, DENIED.
DATED August 24, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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