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Chukwuma E. Azubuko v. Robert F. Chapski; Cynthia M. Garraty

February 2, 2012


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


Currently pending before the Court is Plaintiff's motion for reconsideration of the Court's November 16, 2011 Order denying his motion to proceed in forma pauperis, and dismissing his complaint with prejudice [Doc. No. 3]. For the reasons set forth below, the Court DENIES Plaintiff's motion for reconsideration.


On October 28, 2011, Plaintiff Chukwuma E. Azubuko, proceeding pro se, initiated this action by filing a complaint against Defendants Robert F. Chapski and Cynthia M. Garraty. [Doc. No. 1.] Plaintiff contemporaneously filed a motion for leave to proceed in forma pauperis ("IFP"). [Doc. No. 2.] On November 16, 2011, the Court issued an order denying Plaintiff's motion to proceed IFP, dismissing the complaint as frivolous, and finding that the Court lacks subject matter jurisdiction over Plaintiff's claims and venue is improper in the Southern District of California. [Doc. No. 3.] On January 4, 2012, Plaintiff filed the pending motion for reconsideration under Federal Rule of Civil Procedure 60(b).


Rule 60(b) 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 moves for reconsideration under "Rule 60(b)(4)(6)." [Doc. No. 8, p.4.]

With respect to subparagraph (4), "[t]he Ninth Circuit has consistently held that a final judgment is void for purposes of Rule 60(b)(4) only if the court that considered it lacked jurisdiction, either as to the subject matter of the dispute or over the parties to be bound, or acted in a manner inconsistent with due process of law." Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 *24 (E.D. Cal. June 27, 2011) (citing In re Sasson, 424 F.3d 864, 876 (9th Cir. 2005) (quoting United States v. Berke, 170 F.3d 882, 883 (9th Cir. 1999)). "A judgment is not void within the meaning of Rule 60(b)(4) merely because it is erroneous." Id. (citing In re Sasson, 424 F.3d at 875). 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).



Plaintiff first urges the Court to reconsider its denial of his motion to proceed IFP on the ground that individuals should not be denied access to the Courts solely because they are unable to pay the filing fee. [Doc. No. 8, p.4.] Contrary to Plaintiff's suggestion, he was not denied access to the Court because he is unable to pay. Rather, the Court carefully considered Plaintiff's motion to proceed IFP and determined it was incomplete, and that Plaintiff failed to demonstrate he lacked the financial resources to pay the filing fee. [Doc. No. 3, p.2.]

As stated in the Court's challenged order, a party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However, proceeding IFP is a privilege, not a right. Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). "[T]he same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Plaintiff's motion for reconsideration does not challenge the Court's analysis of his financial resources, nor provide any additional information that might warrant a different result. Accordingly, reconsideration of the Court's order denying Plaintiff's motion to proceed IFP is not appropriate under Rule 60(b)(4) or (b)(6).

However, even if the Court granted Plaintiff's request to proceed IFP, the action still could not proceed for at least three reasons, each of which the Court identified in its November 16 Order. First, Plaintiff's complaint is frivolous, as it is entirely incomprehensible and does not state any claim upon which relief can be granted. Second, the complaint does not provide any legally cognizable ground for the Court to exercise jurisdiction over Plaintiff's claims. Third, even if federal jurisdiction existed, venue is not proper in the Southern District of California. The Court, again, addresses each of these deficiencies below.


Plaintiff appears to dispute the Court's conclusion that his complaint does not satisfy Federal Rule of Civil Procedure 8(a)(2), requiring a short and plain statement demonstrating he is entitled to relief. [Doc. No. 8, p.2.] Plaintiff also asserts he should have been given leave to amend. [Id.] The Court disagrees. Although the Court must construe a pro se litigant's pleadings broadly, dismissal without leave to amend is appropriate where "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Franklin v. Murphy, 245 F.2d 1221, 1228 n.9 (9th Cir. 1984). Just like his complaint, Plaintiff's motion for reconsideration is almost entirely incomprehensible. For example, Plaintiff states: "The Court's take vis-a-vis the sub-head was untrue! ...

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