American General Life Insurance Company v. Vogel ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 AMERICAN GENERAL LIFE INSURANCE Case No. 1:21-cv-00762-ADA-SKO 7 COMPANY, ORDER DISCHARGING ORDER TO 8 SHOW CAUSE AND VACATING Plaintiff, HEARING 9 v. FINDINGS AND RECOMMENDATION 10 TO DISMISS DEFENDANT’S MOTION TO SET ASIDE FOR LACK OF 11 ESPERANZA VARGAS VOGEL and JURISDICTION MONICO RODRIGUEZ, as Trustee of the 12 Esperanza Vargas Special Needs Trust, (Docs. 59 & 62) 13 Defendants. 14 DAY DEADLINE 14 _____________________________________/ Clerk to Reassign to Another District Judge 15 I. INTRODUCTION 16 On April 8, 2024, Defendant Esperanza Vargas Vogel (“Defendant”) filed a motion to set 17 aside (Doc. 59), which is set for hearing on May 29, 2024 (Doc. 61). On April 26, 2024, the 18 undersigned ordered Defendant to show cause why the Court has jurisdiction over her motion to 19 set aside under Fed. R. Civ. P. 60. (Doc. 62.) Defendant did not file a response to the order to 20 show cause, and the deadline to do so has passed. 21 The matter is deemed suitable for decision without oral argument pursuant to E.D. Cal. 22 Local Rule 230(g), and the hearing set for May 29, 2024, will be vacated. For the reasons 23 discussed below, the undersigned shall discharge the order to show cause and shall recommend 24 that Defendant’s motion to set aside be dismissed for lack of jurisdiction, as it is untimely. 25 II. LEGAL STANDARD 26 Defendant’s motion seeks to set aside “entry of default” against her pursuant to Fed. R. 27 Civ. P. 55(c). (See Doc. 59.) However, default judgment was entered against Defendant on 28 1 December 22, 2022. (Doc. 53.) “Once default judgment has been entered, relief is governed by 2 [Fed. R. Civ. P.] 60(b),” not Rule 55(c). Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 3 1111 (9th Cir. 2011). See also Fed. R. Civ. P. 55(c) (a court “may set aside a final default 4 judgment under Rule 60(b)).” 5 Rule 60(b) allows a court to set aside a default judgment for the following reasons: 6 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time 7 to move for a new trial under Rule 59(b); (3) fraud (whether previously called 8 intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; 9 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. 10 11 Fed. R. Civ. P. 60(b). A motion to set aside a default judgment under Rule 60(b) “must be made 12 within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of 13 the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). “[A] district court 14 lacks jurisdiction over an untimely [Rule] 60(b) motion.” Inland Concrete Enterprises, Inc. v. 15 Kraft, 318 F.R.D. 383, 396 (C.D. Cal. 2016). See also Icho v. Hammer, 434 F. App’x 588, 589 16 (9th Cir. 2011) (“If a [Rule] 60(b)(1) motion is untimely, the district court lacks jurisdiction to 17 consider the merits of the motion.”) (citing Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 18 1989) (because the Rule 60(b)(2) motion was not timely filed, “the district court lacked 19 jurisdiction to consider it” and the panel therefore did not need to address the merits of the 20 appeal)). 21 III. ANALYSIS 22 Here, Defendant’s motion was brought pursuant to Rule 55(c), not Rule 60(b). It mentions 23 Rule 60(b) only twice in passing, and specifically cites Rule 60(b)(1). (See Doc. 59-1 at 5.) Any 24 attempt by Defendant to set aside the default judgment under Rule 60(b)(1) is untimely, however, 25 as her motion was brought on April 8, 2024, more than a year after the entry of the judgment on 26 December 22, 2022. See Fed. R. Civ. P. 60(c)(1). In the order to show cause, Defendant was 27 given the opportunity to establish an alternative basis for the Court’s jurisdiction over her motion 28 under Rule 60, but she did not respond to that order. 1 Accordingly, the undersigned finds that the Court lacks jurisdiction to consider 2 Defendant’s motion to set aside on its merits and it must be dismissed. Nevitt, 886 F.2d at 1188; 3 Wolff v. California, 236 F. Supp. 3d 1154, 1164 (C.D. Cal. 2017) ([T]he Court has no authority or 4 discretion to exercise jurisdiction over a Rule 60(b) motion that is not filed within the time 5 permitted by the Rule.”); Inland Concrete, 318 F.R.D. at 415 (“A court is required to dismiss an 6 untimely Rule 60(b) motion for relief from judgment for lack of subject-matter jurisdiction . . . 7 Where the Court lacks jurisdiction over a motion for relief from judgment, the Court may not 8 reach the merits of the motion.”). 9 IV. ORDER AND RECOMMENDATION 10 The Court’s order to show cause (Doc. 62) is hereby DISCHARGED, and the hearing set 11 for May 29, 2024 (see Doc. 61) is hereby VACATED. 12 For the reasons given above, IT IS RECOMMENDED that Defendant’s motion to set aside 13 (Doc. 59) be DISMISSED for lack of jurisdiction, as it is untimely. 14 Due to the elevation of former U.S. District Judge Ana I. de Alba to the Ninth Circuit 15 Court of Appeals, the Clerk of Court is DIRECTED to reassign another District Judge to this 16 action. 17 These findings and recommendation will be submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 19 (14) days after being served with these findings and recommendation, any party may file 20 written objections with the Court. The document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendation.” The parties are advised that failure to file objections 22 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 23 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 26 Dated: May 13, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27 28