Barendt v. Gibbons et al

Filing 110

ORDER denying 105 Motion for Substantive Relief and denying 107 Motion to Strike. Signed by Judge Larry R. Hicks on 9/18/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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*****

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SABIN GREGORY BARENDT,

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Plaintiff,

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vs.

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JIM GIBBONS, et al.,

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Defendants.

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) 3:08-cv-00161-LRH-WGC
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) ORDER
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Before the court is plaintiff Sabin Gregory Barendt’s Motion for Substantive Relief

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(#1051). Defendants have responded (#106). Barendt has moved to strike this response (#107).2

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On March 30, 2010, this court adopted and accepted the Magistrate Judge’s Report and

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Recommendation (#80), granting summary judgment to Defendants on Barendt’s claims under

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the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000c et seq.

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Barendt appealed to the Ninth Circuit, the Ninth Circuit affirmed, and this court entered its Order

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on Mandate (#104) on June 29, 2012. Barendt moves to vacate the adverse judgment under

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Federal Rules of Civil Procedure 55 and 60.

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Under Rule 60(b), the court may relieve Barendt from its final judgment on the grounds
of “(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason that

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Refers to the court’s docket entry number.

Barendt’s Motion to Strike is based singly on the premise that the State of Nevada did
not inform him of a “change in counsel.” This is an improper basis on which to ground a motion
to strike, and the motion is therefore denied.

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justifies relief.” Barendt alleges both that the judgment is mistaken and that principles of equity

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mandate relief. Yet Barendt has identified no mistake warranting reconsideration of the court’s

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judgment, and the identification of such a mistake is his burden to bear. See Timbisha Shoshone

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Tribe v. Kennedy, 267 F.R.D. 333, 336 (E.D. Cal. 2010). Barendt also argues that his

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unfamiliarity with the law constitutes excusable neglect. It does not. See Engleson v. Burlington

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Northern R. Co., 972 F.2d 1038, 1043-44 (9th Cir.1992). Finally, Barendt, in his plea for

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equitable reconsideration, has failed to demonstrate “extraordinary circumstances [that]

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prevented [him] from taking timely action to prevent or correct an erroneous judgment”

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sufficient to warrant reconsideration under Rule 60(b)(6).3 Therefore, Barendt has failed to

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demonstrate grounds on which the court may reconsider judgment.
IT IS THEREFORE ORDERED that Barendt’s Motion for Substantive Relief (#105) is
DENIED.

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IT IS FURTHER ORDERED that Barendt’s Motion to Strike (#107) is DENIED.

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IT IS SO ORDERED.

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DATED this 18th day of September, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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Neither Rule 55(c), governing default judgments, nor Rule 50, providing the conditions
under which a new trial is appropriate, are applicable here.
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