Hood v. Texas Farmers Insurance Company et al

Filing 31

REPORT AND RECOMMENDATIONS by Magistrate Judge Laura Fashing re 28 MOTION to Reopen Case filed by Mike Hood. Objections to R&R due by 5/3/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MIKE HOOD,
Plaintiff,
v.
TEXAS FARMERS INSURANCE
COMPANY, FIRE INSURANCE EXCHANGE
by Fire Underwriters Association, Attorney-inFact; FARMERS INSURANCE EXCHANGE
by Farmers Underwriters Association, Attorneyin-Fact; FIRE INSURANCE EXCHANGE,
FARMERS INSURANCE EXCHANGE, KIM
GARDETTO, BRUCE LITMAN, and DOES 1
to 50,

1:16-cv-00151-JB-LF

Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on plaintiff Mike Hood’s Request for Relief
from Dismissal filed January 9, 2017. Doc. 28. Defendant Farmers Insurance Exchange
(“Farmers”) filed a response on January 23, 2017. Doc. 29. Mr. Hood did not file a reply. The
Honorable James O. Browning referred this case to me pursuant to 28 U.S.C. §§ 636(1)(B),
(b)(3) and Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d 849 (10th Cir. 1990), to perform
any legal analysis and recommend to the Court an ultimate disposition of the case. Doc. 30.
Having reviewed the submissions of the parties and the relevant law, I find that Mr. Hood’s
request for relief from dismissal is without merit and recommend that the Court DENY his
motion to reopen this case.
I.

Procedural Posture
On April 14, 2016, I issued an order to show cause that required Mr. Hood to file a

written explanation showing good cause why his class action complaint should not be dismissed.

Doc. 17 at 2. The order to show cause explained that as a pro se party, Mr. Hood could not bring
claims on behalf of others. Id. Mr. Hood’s response to the order to show case was initially due
no later than May 5, 2016. Id. At the parties’ request, Judge Browning stayed the case for 60
days (Doc. 16), and I amended my order to make Mr. Hood’s response to the order to show
cause due 14 days after the stay was lifted (Doc. 18). Mr. Hood was required to respond to the
order to show cause no later than July 6, 2016. Doc. 22. Mr. Hood did not file a written
response to the order to show cause. Consequently, I issued my Proposed Findings and
Recommended Disposition (“PF&RD”) recommending that the Court dismiss Mr. Hood’s class
action complaint without prejudice, and allowing him 21 days after adoption of the PF&RD to
amend his complaint. Doc. 23 at 3. The PF&RD advised Mr. Hood—in bold face type—that he
could file written objections to the PF&RD and warned him that failure to file such objections
would waive appellate review. Id. Mr. Hood did not file any objections to the PF&RD.
On August 31, 2016, Judge Browning adopted my PF&RD and granted Mr. Hood 21
days to amend his complaint. Doc. 24. On September 9, 2016, during the 21-day period, the
Court amended its memorandum opinion and order adopting the PF&RD and gave Mr. Hood 21
days from its amended order to file an amended complaint, effectively giving Mr. Hood 30 days
to file an amended complaint. Doc. 25 at 9. In his memorandum opinion and order adopting the
PF&RD, Judge Browning warned, “[i]f Hood fails to amend his complaint within twenty-one
days, the Court will dismiss his Complaint with prejudice.” Id. at 9. Mr. Hood did not file an
amended complaint. Accordingly, Judge Browning issued a Final Judgment on October 31,
2016, dismissing Mr. Hood’s complaint with prejudice. Doc. 26. More than two months after
the case was closed, and six months from the deadline to respond to the order to show cause, Mr.
Hood filed the instant motion requesting relief from judgment.

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II.

Discussion
Mr. Hood asks that the Court reopen the case pursuant to Rule 60(b)(1). Federal Rule of

Civil Procedure 60(b)(1) provides that “the court may relieve a party . . . from a final judgment,
order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV.
P. 60(b)(1). Rule 60(b) relief is “extraordinary and may only be granted in exceptional
circumstances.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)
(internal citation and quotation omitted). “Parties seeking relief under Rule 60(b) have a higher
hurdle to overcome because such a motion is not a substitute for an appeal.” Id. To justify Rule
60(b) relief, a party’s “litigation mistake” or “neglect” must be “excusable.” Cashner v.
Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). “Carelessness by a litigant . . . does not
afford a basis for relief under Rule 60(b)(1).” Pelican Production Corp. v. Marino, 893 F.2d
1143, 1146 (10th Cir. 1990). The Supreme Court has explained that “for purposes of Rule 60(b),
‘excusable neglect’ is understood to encompass situations in which the failure to comply with a
filing deadline is attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 394 (1993). “With regard to determining whether a party’s neglect of a
deadline is excusable,” district courts should take “account of all relevant circumstances
surrounding the party’s omission.” Id. at 395. “Relevant factors include the danger of prejudice
to the [opposing party], the length of the delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.” Jennings v. Rivers, 394 F.3d 850, 857 (10th Cir.
2005) (internal citation and quotation omitted). The Tenth Circuit has stated that “fault in the
delay remains a very important factor—perhaps the most important single factor—in
determining whether neglect is excusable.” Id. at 856–57 (quoting United States v. Torres, 372

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F.3d 1159, 1163 (10th Cir. 2004) (analyzing the excusable neglect standard in the context of
Federal Rule of Appellate Procedure 4(b)(4), where the party filed an untimely notice of
appeal)). The movant bears the burden of demonstrating the existence of excusable neglect that
would entitle him to relief. See, e.g., Culbertson v. Holder, 2014 WL 3845129, at *2 (D. Kan.
Aug. 5, 2014) (“The party making the motion has the burden of pleading and proving excusable
neglect.”); Schnuelle v. C & C Auto Sales, Inc., 196 F.R.D. 395, 397 (D. Kan. 2000) (“The
burden falls upon the party moving to have the judgment set aside to both plead and prove
mistake, inadvertence, surprise, or excusable neglect.”).
In his motion, Mr. Hood explains that he did not intend to file the case as a class action.
Doc. 28 at 3. He believed that by agreeing to “a stipulation” with defendant, he had agreed he
was proceeding only on behalf of himself. Doc. 28 at 5. The parties submitted two joint
motions: one accepting service by Farmers and to dismiss certain defendants (Doc. 13); and one
to stay the litigation (Doc. 14). Mr. Hood does not indicate to which “stipulation” he refers.
Regardless, neither of these motions—or the orders granting them—indicates that the action was
not filed on behalf of a class or that those allegations should be stricken. Docs. 13–16. Further,
the stipulations did not—and could not—amend Mr. Hood’s complaint or substitute as a
response to the order to show cause. See FED. R. CIV. P. 15 (procedure for amending a
complaint); Doc. 17 (order to show cause filed after the joint motions had been granted).
Mr. Hood’s explanation for his failure to meet the Court’s deadlines does not constitute
excusable neglect. As Farmers points out, the Court issued five orders, including the
recommended disposition that notified Mr. Hood of this obligation to take action to avoid
dismissal. Doc. 29 at 5 (citing Docs. 17, 22, 23, 24, and 25). Mr. Hood failed to respond to the
order to show cause, object to the PF&RD, or amend his complaint. Mr. Hood contends that he

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was “away from the area because he work required him to relocate to Tennessee” and that “his
office assistant no longer worked for [him].” Doc. 28 at 5. Mr. Hood does not explain why
being away from the area prevented him from participating in this case. Mr. Hood does not
contend that he did not receive the orders of the Court or that his remoteness was coupled with a
circumstance that would prevent him from sending and receiving mail or email, or otherwise
prevent the diligent pursuit of his claims.
Mr. Hood asks the Court to forgive his failure to respond to the Court’s orders, file
objections, or amend his complaint because he is not an attorney. Id. “Although ‘[a] pro se
litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers,’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)), “[t]his court
has repeatedly insisted that pro se parties follow the same rules of procedure that govern other
litigants.” Id. (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994) (internal quotation
marks omitted)). Mr. Hood had numerous opportunities to adhere to the rules and orders of this
Court but failed to do so. I do not recommend reopening a case that has been closed since
October 31, 2016, based solely on Mr. Hood’s pro se status.

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III.

Conclusion
For the reasons stated above, I recommend that the Court DENY Mr. Hood’s Request for

Relief from Dismissal (Doc. 28).
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day period
if that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

____________________________
Laura Fashing
United States Magistrate Judge

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