Living in Jesus Truth Ministry et al v. Wise et al

Filing 31

ORDERED that the # 28 Motion for Relief from Judgment is DENIED. Signed by Chief Judge Robert C. Jones on 10/30/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LIVING IN JESUS TRUTH MINISTRY et al., )
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Plaintiffs,
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v.
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HON. MICHAEL WISE, et al.,
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Defendants.
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___________________________________ )

3:12-cv-109-RCJ-VPC
ORDER

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Currently before the Court is a Motion for Relief from Judgment (#28).
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BACKGROUND
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In February 2012, Plaintiffs Living in Jesus Truth Minister and Tod Dean Brenbarger,
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pro se, filed a complaint in this Court against Defendants Honorable Michael Wise, Jaime
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Winchell, Catherine Cortez Masto (Nevada Attorney General), the deputy attorney general,
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and all other staff of the Office of the Attorney General in their official capacities. (Compl. (#1)
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at 1, 4). The complaint alleged the following. Plaintiff Tod Dean Brenbarger (“Brenbarger”)
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was a resident of Minden, Nevada and was also a minister for Living in Jesus Truth Ministry,
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a corporation and ministry. (Id. at 3-4). Brenbarger claimed to be a citizen of World Prayers
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Answered, which he alleged was not only a corporation organized under Utah law, but a
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sovereign ecclesiastical state. (Id. at 3-4, 9).
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The complaint alleged the following. On August 23, 2011, Brenbarger, as minister for
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Living in Jesus Truth Ministry, sought to register two vehicles to the church. (Id. at 4).
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Brenbarger registered the vehicles using a post office box in Washoe County as the vehicle
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owner’s physical address and a box at a mailbox store as the address for the location of the

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vehicles. (Id. at 2; Application (#4-1)). On August 31, 2011, Jaime Winchell—an agent of the

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Nevada Department of Motor Vehicles—called Brenbarger stating that she had some

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questions regarding the addresses he listed on the vehicle registration forms. (Compl. (#1)

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at 5). Winchell apparently believed Brenbarger had violated Nevada law by listing a post office

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box as the owner’s physical address and a box at a mailbox store as the location of the

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vehicles. Nevada law requires that an application for registering a vehicle contain the owner’s

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residential address and the location the vehicle is to be based, and it is a gross misdemeanor

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to use a fictitious address on the application. Nev. Rev. Stat. §§ 482.215(3), 482.545(5).

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Brenbarger informed Winchell that he had used those addresses because Living in Jesus

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Truth Ministry had not yet procured a building for its use. (Compl. (#1) at 5-6). On September

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19, 2011, the Nevada Department of Motor Vehicles issued an administrative citation pursuant

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to NRS § 482.545(5) to Brenbarger for registering a vehicle under a fictitious address. (Id. at

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2, 6).

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The complaint alleged the following. An administrative hearing was then initiated before

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the Honorable Michael Wise (“Judge Wise”). (Id. at 6-7). In December 2011, Brenbarger filed

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a motion challenging the administrative law court’s jurisdiction, claiming that the court had no

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jurisdiction over him because he was a public minister of World Prayers Answered, which is

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a foreign ecclesiastical state. (Id.). Judge Wise informed Brenbarger that his pleading would

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not be treated as a motion, but as evidence, and that no ruling would be made on the pleading

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until a full hearing was held on the matter. (Id. at 7). Brenbarger apparently failed to appear

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at the administrative hearing held on March 1, 2012 and his fine was upheld. (Mot. to Dismiss

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(#4) at 3; Order of Default (#4-4)).

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The complaint alleged four causes of action: (1) diplomatic immunity; (2) violation of

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due process; (3) violation of 42 U.S.C. § 1983; and (4) violation of the First Amendment right

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of a church to not have a fixed address. (Compl. (#1) at 6-15). The complaint did not explicitly

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seek any injunctive or declaratory relief, but did seek general damages in the amount of

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$5,000,000, punitive damages in the amount of $25,000,000, prejudgment interest in the

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amount of $15,000,000, and post-judgment interest in the amount of $15,000,000, along with
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various court filing fees. (Id. at 15-16).

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Defendants filed a motion to dismiss the complaint for failure to state a claim on March

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19, 2012. (Mot. to Dismiss (#4)). Brenbarger filed a motion to enforce § 1983 on May 21,

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2012 which restated many of the same arguments presented in Brenbarger’s opposition to the

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motion to dismiss. (Mot. to Enforce § 1983 (#16)).

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On August 3, 2012, this Court issued an order granting Defendants’ motion to dismiss

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the entire complaint with prejudice and denying Brenbarger’s motion to enforce § 1983 as

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moot. (Order (#26) at 14). In that order, this Court noted that Plaintiff’s motion to enforce

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§ 1983 asserted that Chief Judge Robert C. Jones was biased in this action because he had

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been named as a defendant in another action brought by World Prayers Answered citizens.

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(Id. at 3-4 n.2; Mot. to Enforce § 1983 (#16) at 6). This Court found that “the mere fact that

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Chief Judge Robert C. Jones [had] been named as one of many defendants in another action

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filed by another citizen of World Prayers Answered [did] not necessitate recusal” in the case.

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(Order (#26) at 3-4 n.2). The Court found that Brenbarger, pro se, could not represent Living

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in Jesus Truth Ministery because corporations must appear in court through licensed counsel.

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(Id. at 3 n.1).

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In the order, the Court found the following. (Id. at 6). Judge Wise was entitled to

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absolute quasi-judicial immunity because he was an administrative law judge being sued for

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decisions made while performing a judicial function. (Id.). This Court dismissed Judge Wise

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from this action with prejudice. (Id.). The Court dismissed Attorney General Masto, the deputy

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attorney general, and the entire staff of the Office of the Attorney General because the

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complaint failed to allege any wrongdoing on the part of any of these parties. (Id.). The Court

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found that, to the extent that Brenbarger intended to sue the State of Nevada by naming

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Attorney General Masto as a defendant, the State of Nevada was entitled to immunity under

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the Eleventh Amendment. (Id. at 6-7). The Court found that Brenbarger’s claims against

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Winchell acting in her official capacity was an action against the Nevada Department of Motor

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Vehicles. (Id. at 7). The Court found that Brenbarger had failed to state a claim against the

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Nevada Department of Motor Vehicles for monetary damages, but that he could potentially
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state a claim against the Nevada Department of Motor Vehicles that could yield injunctive

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relief. (Id. at 8). However, the Court found that Brenbarger “ultimately failed to sufficiently

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plead that the Department of Motor Vehicles or any other Defendant engaged in any conduct

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which deprived him of a right secured by the Constitution or laws of the United States” and,

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thus, “failed to state a claim under any of his causes of action.” (Id. at 9-13).
On August 2, 2013, Brenbarger filed the pending Motion from Relief from Judgment

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(#28).
DISCUSSION

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In his motion, Brenbarger moves this Court for relief from judgment pursuant to Fed. R.

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Civ. P. 60(b)(3) and (b)(6). (Mot. for Relief (#28) at 1). Brenbarger asserts that, pursuant to

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Rule 60(b)(3), Judge Wise had perpetrated fraud because he heard a criminal matter in civil

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court and he converted Brenbarger’s pre-trial motions into evidence. (Id. at 2). Brenbarger

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asserts that, pursuant to Rule 60(b)(6), Judge Jones should have recused himself. (Id. at 5).

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Brenbarger also disputes this Court’s legal analysis in its prior order. (Id. at 10-30).

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Defendants filed a response and Brenbarger filed a reply. (Opp’n to Mot. for Relief
(#29); Reply to Mot. for Relief (#30)).

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As an initial matter, to the extent that Brenbarger is attempting to file a motion for

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reconsideration of this Court’s August 2012 order, this Court finds that such a motion is

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untimely and denies the request. Pursuant to Rule 59(e), a motion to alter or amend a

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judgment must be filed no later than 28 days after the entry of the judgment. Fed. R. Civ. P.

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59(e). Brenbarger filed the pending motion in August 2013.

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Pursuant to Rule 60, “[o]n motion and just terms, the court may relieve a party or its

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legal representative from a final judgment, order, or proceeding for the following reasons . . .

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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by

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an opposing party . . . or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(3), (6).

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To prevail on a Rule 60(b)(3) motion, “the moving party must prove by clear and

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convincing evidence that the verdict was obtained through fraud, misrepresentation, or other

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misconduct and the conduct complained of prevented the losing party from fully and fairly
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presenting the defense.” De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th

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Cir. 2000). “Rule 60(b)(3) ‘is aimed at judgments which were unfairly obtained, not at those

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which are factually incorrect.’” Id. (quoting In re M/V Peacock, 809 F.2d 1403, 1405 (9th

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Cir.1987)).

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The Court denies Brenbarger’s Rule 60(b)(3) motion. Brenbarger has not demonstrated

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that Defendants engaged in fraud or misrepresentation to this Court. This Court notes that

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Brenbarger makes the same arguments in his motion for relief as he did in his opposition to

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the motion to dismiss.

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With respect to the Rule 60(b)(6) motion, the Ninth Circuit has held that “Rule 60(b)(6)

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has been used sparingly as an equitable remedy to prevent manifest injustice.” United States

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v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). “The rule is to be utilized

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only where extraordinary circumstances prevented a party from taking timely action to prevent

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or correct an erroneous judgment.” Id. The U.S. Supreme Court has held that “Rule 60(b)(6)

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relief was available to a litigant against whom judgment was entered by a judge who had

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improperly refused to recuse himself in the proceeding.” Id. (citing Liljeberg v. Health Services

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Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)).

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Pursuant to 28 U.S.C. § 455, a judge shall disqualify himself in any proceeding in which

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his impartiality might be reasonably questioned. 28 U.S.C. § 455(a). A judge shall also

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disqualify himself where he, inter alia,: (1) has a personal bias or prejudice concerning the

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party; (2) served as an attorney in private practice on the matter; (3) served in a government

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capacity as an attorney on the matter; (4) knows that he or his family has a financial interest

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in the subject matter, or (5) he, his spouse, or close relative are a part of the proceeding. 28

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U.S.C. § 455(b)(1)-(5).

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In this case, Brenbarger argues that Judge Jones should have recused himself from

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this case because Judge Jones was a defendant in another civil case involving different

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plaintiffs who are members of the World Prayers Answered. (See Mot. for Relief (#28) at 7).

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The Court notes that the plaintiffs in that case are Linwood Edward Tracy, Jr. and William

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Gerald Filion. See Tracy et al. v. Miles et al., 3:11-cv-436-LRH-VPC (D. Nev. 2011). The
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Court notes that none of the parties in that case are parties in the current case. The Court

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finds that Brenbarger has failed to demonstrate that Judge Jones should have recused himself

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pursuant to 28 U.S.C. § 455(a) or (b). Accordingly, the Court denies Brenbarger’s Motion for

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Relief from Judgment (#28).
CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the Motion for Relief from Judgment
(#28) is DENIED.
Dated this 30th day of October, 2013.
DATED: This _____ day of October, 2013.

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_________________________________
United States District Judge

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