Neville v. Dill ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT NEVILLE, MD, Case No.: 19cv321-CAB-MDD 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. RULE 60 MOTION [Doc. No. 34] AND REQUEST FOR TELEPHONIC 14 MARGUERITE DILL, HEARING [Doc. No. 35] 15 Defendant. 16 17 On August 13, 2019, Plaintiff Robert Neville (“Plaintiff”) filed a “Voluntary 18 Dismissal” [Doc. No. 25], which this Court deemed an ex parte motion to dismiss 19 pursuant to Fed.R.Civ.P. Rule 41(a)(2) [Doc. No. 26]. On September 6, 2019, pursuant 20 to its complete discretion under Rule 41(a)(2), the Court granted Plaintiff’s motion, 21 dismissed the action with prejudice, and awarded Defendant $1,000 in costs. [Doc. No. 22 30.] On September 6, 2019, judgment was entered accordingly for Defendant. [Doc. No. 23 31.] On December 4, 2019, Plaintiff filed a Rule 60 Motion. [Doc. No. 34.] On 24 December 20, 2019, Plaintiff filed a request for telephonic hearing on pending Rule 60 25 motion. [Doc. No. 35.] For the reasons set forth below, both motions are DENIED. 26 / / / / / 27 / / / / / 28 1 A. Legal Standard. 2 Rule 60 provides for extraordinary relief and may be invoked only upon a showing 3 of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 4 (9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final 5 judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or 6 excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could 7 not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud by 8 the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) and 9 other reason justifying relief.” Fed. R. Civ. P. 60(b). Further, the Rule provides that a 10 motion brought under it “must be made within a reasonable time – and for reasons (1), 11 (2), and (3) no more than a year after the entry of judgment or order of the date of the 12 proceeding.” Fed. R. Civ. P. 60(c). 13 B. Discussion. 14 Here, Plaintiff does not state under which of the six permissible grounds he is 15 seeking relief under Rule 60. Rather, he argues with a prior ruling in the case where the 16 magistrate judge required his personal appearance at a hearing.1 However, it was 17 Plaintiff who requested dismissal of his case pursuant to Fed.R.Civ.P. Rule 41(a)(2). 18 [Doc. No. 25, 26.] Under Rule 41(a)(2), this Court has complete discretion to grant such 19 a request under the terms it deems appropriate. See Smith v. Lenches, 263 F.3d 972, 975 20 (9th Cir. 2001). That is exactly what this Court did. [Doc. No. 30.] Plaintiff has not 21 shown any “exceptional circumstances” to warrant Rule 60 relief from that ruling. 22 Engleson, 972 F.2d at 1044. 23 / / / / / 24 / / / / / 25 26 1 In support of that argument, Plaintiff has filed the affidavit of Daniel G. Abel, who apparently is a 27 friend of Plaintiff’s and represents that he is an attorney. However, Mr. Abel is not an attorney of record 28 in this case. Therefore, Mr. Abel’s personal opinions regarding the merits of Plaintiff’s case, as well as 1 C. Conclusion. 2 For the reasons set forth above, the Rule 60 motion and the Request for Telephonic 3 || Hearing are DENIED. 4 Dated: December 27, 2019 ( ° Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28