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Moore v. County of Kern

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 10, 2009

JAMES W. MOORE, JR., A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, ALICIA MOORE, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST OF JAMES W. MOORE, DECEASED, ET. AL, PLAINTIFFS,
v.
COUNTY OF KERN, ET. AL, DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

AND RELATED CONSOLIDATED CASE AND CROSS-CLAIMS

ORDER VACATING JANUARY 4, 2010 HEARING AND GRANTING PLAINTIFF'S MOTION FOR RELIEF (Doc. No. 229)

On November 18, 2009, the Court issued an order adopted Findings and Recommendations ("F&R's") from the Magistrate Judge and approved the settlement reached between minor Plaintiff James W. Moore, Jr. ("Plaintiff") and Defendants. See Court's Docket Doc. No. 228 (hereinafter "the Order"). No party had objected or responded in any way to the F&R's.

On November 20, 2009, Plaintiff filed a motion under Rule 60 for relief from the Court's Order adopting the F&R's. Plaintiff states that there is a mathematical error in the F&R's and the Order. Specifically, item number 8 at page 5, line 4 orders that $82,906.66 be placed in an insured, blocked bank account. However, Plaintiff states that for all the numbers to add up properly, the amount should really be $72,906.66.

Hearing on Plaintiff's motion is set for January 4, 2010. After the Court reviewed the motion, it ordered Defendants to file either an opposition or notice of non-opposition to Plaintiff's motion by December 9, 2010. The Court has received no oppositions to Plaintiff's motion and instead has received numerous notices of non-opposition. As such, this matter is suitable for disposition without the need for further briefing or oral argument. See Local Rule 78-230(h).

The Court has reviewed the figures and has determined that Plaintiff is correct. The amount of $72,906.66 is required for the figures to correctly add up to the total settlement amount. Relief is appropriate. See Fed. R. Civ. Pro. 60.

Accordingly, IT IS HEREBY ORDERED that:

1. The January 4, 2010, hearing is VACATED;

2. Plaintiff's motion for relief from order under Rule 60 is GRANTED;

3. Item 8 of the Court's November 18, 2009, order adopting F&R's (Court's Docket Doc. No. 228) is REVISED and shall now read:

IT IS ORDERED that the remaining balance of the settlement money not allocated to purchase of an annuity, payment of fees and costs, or to segregation in an account for vehicular expenses, amounting to approximately $72,906.66, BE PLACED in an insured, blocked account in the name of Alicia Moore Whitaker, mother, and James W. Moore, minor son, at Wells Fargo Bank, Downtown Branch, located at 1300 22n d Street, Bakersfield, California, until the minor's eighteenth birthday, which shall occur on October 15, 2010, at which time the remaining balance in the account shall become the property of James W. Moore, Jr.

4. All other aspects of the Court's November 18, 2009, order adopting F&R's (Court's Docket Doc. No. 228) remain unchanged.

IT IS SO ORDERED.

20091210

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