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Mykal S. Ryan v. Lee M. Quick; Lee M. Quick

May 12, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


On May 9, 2011, Plaintiff Mykal Ryan filed an "Objection to Decision and Motion to Continue Prosecution of Case." [Doc. No. 10.] Therein, Plaintiff challenges the Court's dismissal of this matter on December 7, 2010. [Doc. No. 8.] The Court construes Plaintiff's objection as a motion for reconsideration of the Court's entry of judgment. For the reasons stated below, the Court DENIES Plaintiff's motion.


On June 23, 2010, Plaintiff filed a complaint alleging thirty causes of action against Defendants, including fourteen claims for perjury, thirteen claims for conspiracy to commit perjury, and claims for defamation, malice, and intentional infliction of emotional distress; a summons was issued the same day. [Doc. Nos. 1, 2.] Plaintiff's claims arise out of events related to his appointment as trustee of his deceased brother's estate, subsequent efforts to remove Plaintiff from that position due to disagreement with his management of the trust assets, and allegedly false accusations that Plaintiff misappropriated over one million dollars from the trust.

All of the events complained of occurred in the state of Virginia, and Defendants reside in Virginia. However, Plaintiff, a California resident, deliberately filed this action in the Southern District of California claiming that, this "is the proper venue for fairness to [Plaintiff] to allow due process and in the interest of justice. Any other venue would deny [him] the opportunity to prosecute the case and to fully participate in the trial and hearings." [Doc. No. 1.] Plaintiff asserts he suffers from Post Traumatic Stress Disorder ("PTSD") which prohibits him from traveling outside of California.

Nearly five months after Plaintiff filed his complaint, Plaintiff had not served either named Defendant. On November 4, 2010, the Court set a hearing for December 6, 2010 for Plaintiff to show cause why he had not served Defendants within the time permitted by Federal Rule of Civil Procedure 4(m). [Doc. No. 3.] On December 1, 2010, Defendants specially appeared to notify the Court that Plaintiff had unsuccessfully attempted service on October 27, 2010, and to assert that Plaintiff's choice of venue in California was improper. [Doc. No. 5.] Plaintiff filed nothing in response to the notice of hearing, and he did not appear at the hearing on December 6, 2010. Accordingly, on December 7, 2010, the Court entered judgment and dismissed the action without prejudice for failure to serve Defendants in accordance with Rule 4(m), and for improper venue. [Doc. No. 8.]

More than five months after the Court dismissed Defendants without prejudice and terminated the case, Plaintiff filed the pending motion challenging the Court's entry of judgment.


Rule 60(b)*fn1 of the Federal Rules of Civil Procedure provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. A Cand S Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff does not reference Rule 60(b) in his moving papers, and does not argue that reconsideration should be based on subparagraphs (1) through (5). Therefore the Court sua sponte considers the motion pursuant to Rule 60(b)(6).

Under subparagraph (6), Plaintiff must show that there are extraordinary grounds justifying relief; mere dissatisfaction with the court's order or belief that the court is wrong in its decision are not adequate grounds for relief. Twentieth Century -- Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Further, Rule 60(b)(6) "is used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006).


Plaintiff asserts he has been unable to prosecute his action against Defendants because he "was diagnosed . . . with Post Traumatic Stress Disorder (PTSD) in August 2005 after serving two (2) consecutive tours of duty in Iraq as an Army soldier and the second tour was voluntary." [Doc. No.10, ¶¶3, 10, 24.] Plaintiff therefore requests that he be permitted to "continue the prosecution of this case as a reasonable accommodation for [his] PTSD disability." [Id. at ¶25.] Plaintiff does not, however, demonstrate any legally cognizable ground for relief from the judgment entered in this case. Plaintiff asserts he has been completely disabled by his PTSD since 2005, and offers no indication his ability to prosecute this matter has improved since he filed the complaint in June 2010. [Id. at ¶19.] Nor does Plaintiff acknowledge either ground on which the Court entered the judgment.

(A) Failure to Serve

The Court dismissed Plaintiff's complaint without prejudice on December 7, 2010, on two grounds. First, Plaintiff did not serve Defendants within the time ...

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