Kelly v. Cubesmart ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CYNTHIA RENEE KELLY, Case No. 22-cv-05470-HSG 8 Plaintiff, ORDER DENYING MOTION FOR RELIEF PURSUANT TO FED. R. CIV. 9 v. P. 60(B) 10 CUBESMART, et al., Re: Dkt. No. 132 11 Defendants. 12 Following the Court’s dismissal of this case for failure to prosecute, Dkt. No. 129, Plaintiff 13 filed what is styled, among other things, as a request for relief “pursuant to Federal Rules of Civil 14 procedure, Rule 60(a)(b)(1)(2)(3)(c)(d)(3).” Dkt. No. 132. The Ninth Circuit is holding 15 Plaintiff’s appeal in abeyance until the Court rules on this motion. Dkt. No. 140. The Court 16 construes Plaintiff’s motion as seeking to vacate or correct the judgment under Rule 60, and 17 DENIES it. 18 I. LEGAL STANDARD 19 Federal Rule of Civil Procedure 60(a) allows the Court to “correct a clerical mistake or a 20 mistake arising from oversight or omission whenever one is found in a judgment, order, or other part 21 of the record.” Fed. R. Civ. P. 60(a). Federal Rule of Civil Procedure 60(b), in relevant part, provides 22 that “the court may relieve a party or its legal representative from a final judgment, order, or 23 proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) 24 newly discovered evidence that, with reasonable diligence, could not have been discovered in time to 25 move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), 26 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has 27 been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or 1 relief.” Fed. R. Civ. P. 60(b). Whether to grant relief under Rule 60(b) is a matter of the Court’s 2 discretion. Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996, 1001 (9th Cir. 2007). 3 discussion 4 Fundamentally, Plaintiff’s motion does not address the basis for the dismissal order, 5 namely her persistent refusal to appear for a case management conference and otherwise cooperate 6 || in the prosecution of her case. See Dkt. No. 129. The current motion does not say, for example, 7 that Plaintiff had an emergency or otherwise was unable to comply with the Court’s procedures 8 and orders for some reason, and that she is ready to do so now. Instead, to the extent the Court 9 || can discern the basis for the filing, it is essentially the same thing Plaintiff has been saying for 10 || some time in this case: the Court’s rulings are substantively wrong, and she is being treated 11 unfairly, so as to justify her course of conduct.! Nothing about these arguments meets the a 12 standard for relief under any prong of Rule 60(b), and there is no clerical or other mistake to 13 correct under Rule 60(a). Accordingly, in its discretion, the Court DENIES Plaintiff's motion to 14 || vacate the judgment.” 15 IT IS SO ORDERED. 16 || Dated: 1/16/2024 17 Alapurdl 5 Mbt |). HAYWOOD S. GILLIAM, JR. 18 United States District Judge 19 20 21 22 23 ' As an example, Plaintiff suggests that the Court “is not truthful, falsification, and accusations 24 || against the Plaintiff as not filing an Amended Complaint [sic],” referencing an October 2022 amended complaint. Dkt. No. 132 at 3. But the Court dismissed much of that complaint in June 95 || 2023, Dkt. No. 87, and as the Court’s order dismissing for failure to prosecute made clear, Plaintiff never filed an amended complaint correcting the deficiencies identified in that order, or 26 appeared at the scheduled case management conference where she could have confirmed that she wished to proceed on what was left of the complaint. Dkt. No. 129 at 1-2. 7 > Plaintiffs motion also includes another “request[] for relief pursuant to 28 U.S. Code §144, Bias or Prejudice of Judge.” Dkt. No. 132 at 1. As the Court explained to Plaintiff in its June 2023 2g || order denying her earlier motion for recusal, the fact that Plaintiff disagrees with the Court’s rulings does not establish a basis for recusal. Dkt. No. 87 at 11.