HomeMy WebLinkAbout2008-02-26_Dan_Cole_v._County_of_Hawaii_-_Order_denying_plaintiff's_motion_to_vacate Case 1:05-cv-00325-JMS-BMK Document 43 Filed 02/26/2008 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DAN A. COLE, ) CIVIL NO. 05-00325 JMSBMK
Plaintiff, ) ORDER DENYING PLAINTIFF'S
MOTION TO VACATE THE ORDER
VS. ) GRANTING DEFENDANTS'
MOTIONS TO DISMISS
STATE OF HAWAII, COUNTY OF ) PLAINTIFF'S SECOND AMENDED
HAWAII, JOHN DOE 1-50, JANE ) COMPLAINT FILED ON JANUARY
DOE 1-50, DOE CORPORATIONS 1- ) 25, 2006
10, DOE PARTNERSHIPS 1-10, DOE )
GOVERNMENT AGENCIES 1-10, )
Defendants. )
ORDER DENYING PLAINTIFF'S MOTION TO VACATE THE ORDER
GRANTING DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S
SECOND AMENDED COMPLAINT FILED ON JANUARY 25, 2006
I. INTRODUCTION
On January 16, 2008, pro se Plaintiff Dan A. Cole filed a Motion to
Vacate Judgment ("Motion to Vacate"), which seeks to set aside the court's
January 25, 2006 Order Granting Defendants' Motions to Dismiss Plaintiff's
Second Amended Complaint ("January 25, 2006 Order").' Pursuant to Local Rule
7.2(d), the court finds this matter suitable for disposition without a hearing. After
' Although Plaintiff seeks to "vacate the judgment ordered on January 24, 2006," the
court's Order and Judgment were filed on January 25, 2006.
Case 1:05-cv-00325-JMS-BMK Document 43 Filed 02/26/2008 Page 2 of 6
careful consideration of Plaintiff's Motion to Vacate and the supporting and
opposing memoranda, the court DENIES Plaintiff's Motion to Vacate.
II. DISCUSSION
A recitation of the facts and procedural history of the case is set forth
in the January 25, 2006 Order and need not be recounted here. The court briefly
summarizes the arguments in Plaintiff's Motion to Vacate. Plaintiff repeats his
arguments that: (1) the State and County violated his constitutional rights in
failing to remedy the damage to his property; and (2) the State and County
deprived him of his Fourteenth Amendment property rights because he is unable to
sell or transfer his property.
A. Plaintiff's Pleading is Construed as a Rule 60(b) Motion
In reviewing a pro se petition, the court must construe the pleadings
liberally. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme
Court has instructed the federal court to liberally construe the `inartful pleading'
of pro se litigants." (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam))). Accordingly, the court construes Plaintiff's Motion to Vacate as a
motion for relief from a judgment or order pursuant to Federal Rule of Civil
Procedure 60(b).
Rule 60(b) provides for relief only upon a showing of(1) mistake,
2
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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3)
fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6)
"extraordinary circumstances" which would justify relief. Fed. R. Civ. P. 60(b).2
In his Motion to Vacate Plaintiff does not allege any of the grounds
for Rule 60(b) relief.3
B. Plaintiff's Motion Is Untimely
A Rule 60(b) motion must be made within a "reasonable time -- and
2 Rule 60, as cited, became effective December 1, 2007 and"shall govern in all
proceedings thereafter commenced and, insofar as just and practicable, all proceedings then
pending." See April 30, 2007 Order of the Supreme Court of the United States Amending Rules;
see also Fed. R. Civ. P. 86 (stating that the "rules and amendments take effect at the time
specified by the Supreme Court, subject to 28 U.S.C. § 2074" and govern pending proceedings
unless "the Supreme Court specifies otherwise," or"the court determines that applying them in a
particular action would be infeasible and work and injustice"). "The language of Rule 60 has
been amended as part of the general restyling of the Civil Rules to make them more easily
understood and to make style and terminology consistent throughout the rules. These changes
are intended to be stylistic only." Rule 60 Advisory Committee Notes, 2007 Amendments.
Because the amended version of Rule 60 governs, and no substantive change in the law was
intended, the court interprets the new rule by applying precedent related to prior version of Rule
60. See United States v. Wilson, 429 F.3d 455, 458 n.2(3d Cir. 2005) (noting that amendment
moving Fed. R. Crim. P. 32 into Fed. R. Crim. P. 11(d) did not substantively change the rule
such that "precedent referring to Rule 32 continues to be authoritative").
3 On February 13, 2008, Cole filed Plaintiff's Response to Defendants' Memorandum in
Opposition to Plaintiff's Motion to Vacate Judgment ("Response"). In his Response, Plaintiff
alleges for the first time that he is required, under penalty of law, to report a"pattern of
racketeering activity by an enterprise formed and controlled by Japanese/Asian, racial, ethnic,
and cultural bonds and obligations that corruptly controls, or influences County, State, and
Federal offices and officials in Hawaii." Id. at 4. Plaintiff asserts that, if allowed discovery, the
existence of this alleged"RICO enterprise" will be "exposed." Id. at 5. This new argument is
not properly raised in a motion under Rule 60(b), and therefore, will not be considered by the
court.
3
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for reasons (1), (2), and (3) no more than a year after the entry of the judgment or
order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1). "What constitutes a
`reasonable time' depends upon the facts of each case, taking into consideration
the interest in finality, the reason for delay, the practical ability of the litigant to
learn earlier of the grounds relied upon, and the prejudice to the opposing parties."
Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 198 1) (per curiam). Moreover, a
party who files for Rule 60(b) relief after the time for appeal has expired must
establish "the existence of extraordinary circumstances which prevented or
rendered him unable to prosecute an appeal." Plotkin v. Pac. Tel. & Tel. Co., 688
F.2d 1291, 1293 (9th Cir. 1982) (citation omitted).
Plaintiff filed the present motion nearly two years after his case was
dismissed, or more than 22 months after the time to appeal that dismissal had
expired. See Fed. R. App. P. 4(a). He is thus precluded from seeking to vacate the
judgment based on mistake, newly discovered evidence, or fraud under
subsections (1)-(3). To the extent Plaintiff seeks relief under subsections (4), (5),
or (6), he has offered no explanation to excuse the delay in filing his motion,
regardless of how it is construed. See Plotkin, 688 F.2d at 1293.
4
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C. Plaintiff Fails to Allege Extraordinary Circumstances Justifying Relief
Under Rule 60(b)(6)
Even assuming that the Motion to Vacate was timely filed, Plaintiff's
only possibility for relief is under the catch-all provision of Rule 60(b)(6), which
is used "sparingly as an equitable remedy to prevent manifest injustice."
Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996, 1005 (9th Cir.
2007) (citation and internal quotation signals omitted). Rule 60(b)(6) applies only
where "extraordinary circumstances prevented a party from taking timely action to
prevent or correct an erroneous judgment." See Latshaw v. Trainer Wortham &
Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (citations and internal quotation signals
omitted).
Plaintiff has made no such showing. His failure to appeal "may be
attributable to inattention or inexperience but neither deficiency constitutes an
extraordinary circumstance that justifies Rule 60(b) relief." Hamilton v. Newland,
374 F.3d 822, 825 (9th Cir. 2004) (citation and internal quotation signals omitted);
see also Lehman v. United States, 154 F.3d 1010, 1017 (9th Cir. 1998) ("Neglect
or lack of diligence is not to be remedied through Rule 60(b)(6)." (citation
omitted)).
Notwithstanding the untimeliness of the Motion to Vacate, Plaintiff's
5
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supporting arguments do not set forth any basis from which the court could
construe that satisfactory legal grounds for Rule 60(b) relief have been presented.
Plaintiff instead merely repeats arguments previously rejected by the court.4
III. CONCLUSION
For the reasons stated herein, Plaintiff `s Motion to Vacate Judgment
is DENIED.
DATED: Honolulu, Hawaii, February 25, 2008.
9s AT�s a,s TRca
/s/J. Michael Seabright
J. Michael Seabright
z United States District Judge
Ole
H10T n kP
Cole v. State of Hawaii, et al., Civ. No. 05-00325 JMS/BMK, Order Denying Plaintiff s Motion
to Vacate the Order Granting Defendants' Motions to Dismiss Plaintiff's Second Amended
Complaint Filed on January 25, 2006.
4 Insofar as Plaintiff challenges the validity of the court's August 16, 2005 Order Granting
Motions to Dismiss Complaint and Amended Complaint With Leave to Amend, he has not
offered legal authority sufficient to cause the court to revisit its prior opinion.
6