Spencer v. North Clackamas Child Welfare et al
Filing
21
OPINION & ORDER: Spencer's Motion for Relief from Final Judgment 20 is Granted, and the clerk of court is directed to re-open this action. Signed on 5/14/18 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TANYA SPENCER,
Plaintiff,
3:17-CV-1122-PK
OPINION AND ORDER
v.
NORTH CLACKAMAS CHILD WELFARE
and MILWAUKIE POLICE DEPARTMENT,
Defendants.
PAPAK, Magistrate Judge:
Plaintiff Tanya Spencer filed this action against defendants North Clackamas Child
Welfare and the Milwaukie Police Department on July 19, 2017. Spencer alleges that the
defendants falsified documents resulting in the removal of her children from her custody and
their placement into foster care. She further alleges that this caused her to lose her job and her
home. She further alleges that the Milwaukie Police Depmiment "had [her] vehicle illegally
Page 1 - OPINION AND ORDER
towed." It is unclear from Spencer's complaint what claims Spencer intends to allege against the
defendants arising out of these facts. It is Spencer's position that this court may properly exercise
federal question jurisdiction over her intended claims.
This court's advice to Spencer that her motion for leave to proceed in Jonna pauperis had
been granted was returned to the court as undeliverable on October 17, 2017, as was the court's
advice to Spencer that a discovery order had issued on October 30, 2017. I issued an order (#11)
to show cause on November 2, 2017, by and through which I directed Spencer to "file a notice of
change of address within thirty (30) days of the date of this Order or show cause why this action
should not be dismissed for failure to prosecute." I further advised Spencer "that failure to file a
change of address or otherwise show cause will result in the dismissal of this proceeding for lack
of prosecution." The court's advice to Spencer that the order to show cause had issued was
returned as undeliverable on November 6, 2017, and again on November 20, 2017.
On December 7, 2017, Judge Mosman issued an order (#16) of dismissal dismissing
Spencer's action for failure to respond to the comt's order to show cause on December 7, 2017.
The court's advice to Spencer that Judge Mosman's order had issued was returned as
undeliverable on December 11, 2017.
On March 29, 2017, Spencer filed a notice of change of address and a motion (#20) to reopen her case.
Motions for relief from final judgment are governed by Federal Civil Procedure Rule
60(b). Rule 60(b) provides as follows:
On motion and just terms, the court may relieve a pmty or its legal representative
from a final judgment, order, or proceeding for the following reasons:
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(1)
mistake, inadveitence, surprise, or excusable neglect;
(2)
newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b);
(3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4)
the judgment is void;
(5)
the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). It appears likely that the relief Spencer seeks from Judge Mosman's order
of dismissal should most properly be considered under Federal Civil Procedure Rule 60(b)(1 ),
which provides for relief from final judgment in case of excusable neglect.
Although by and through her filings of March 29, 2018, Spencer does not affitmatively
argue that her failure to maintain an accurate address of record with the comt could have been the
result of excusable neglect, I infer from the allegations of Spencer's complaint that during the
period of her failure to maintain an accurate address of record she was without either a home or a
job, and under those circumstances find that her failure was more likely than not the result of
excusable neglect. On that ground, I find that Spencer is entitled to the requested relief from
final judgment. See Fed. R. Civ. P. 60(b)(! ).
I II
I II
I II
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CONCLUSION
For the reasons set fmth above, Spencer's motion (#20) for relief from final judgment is
granted, and the clerk of court is directed to re-open this action.
Dated this 14th day of May, 2018.
Honorable Paul Papak
United States Magistrate Judge
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