United States District Court, S.D. California
ORDER ON MOTIONS FOR RELIEF FROM JUDGMENT OR TO
VACATE SEPTEMBER 6, 2016, ORDER [DOC. 19, 20]
Cathy Ann Bencivengo United States District Judge.
April 4, 2016, Debtor's brother, Mel Marin, filed a
motion for withdrawal of reference. [Doc. No. 1.]
April 25, 2016, this Court was unable to ascertain the
particular motion or legal issue movant sought to withdraw
and issued an Order to Show Cause (“OSC”). [Doc.
No. 5.] On May 12, 2016, Debtor responded to the OSC. [Doc.
No. 6.] Debtor identified her “collateral attack
against dismissal or her prior Chapter 13 case” and
“debtor's contempt claims against creditors who
have been looting her estate and harassing her” as the
specific issues to withdraw. [Id. at 1-2.] Further,
Debtor asserted that her brother has standing because he has
a lien on debtor's property. [Id. at 4.] On May
16, 2016, Debtor filed a supplemental response to the OSC
identifying an additional five issues she sought withdrawal
of. [Doc. No. 8.]
the OSC was under submission, the Bankruptcy Court dismissed
the underlying petition. In light of the dismissal, on
September 6, 2016, this Court denied as moot the motion for
withdrawal of reference and ordered that the Clerk of the
Court close the case. [Doc. No. 11.] On the same day, the
Clerk of Court entered judgment and closed the case. [Doc.
April 24, 2017, Mel Marin filed a Motion for Relief from
Judgment or to Vacate Order of 9/26/2016 Denying Withdrawal
of the Reference of Contempt Motions and Adversarial Actions
as to Wells Fargo Defendants in Case 16-00301-CL-13 from the
Bankruptcy Court (Rule 60). [Doc. No. 19.] On the same day,
Debtor filed a Motion for Relief from Judgment or to Vacate
Order of 9/6/2016 Denying Withdrawal of the Reference. [Doc.
No. 20.] Both motions were made pursuant to Federal Rule of
Civil Procedure Rule 60.
provides for extraordinary relief and may be invoked only
upon a showing of “exceptional circumstances.”
Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044
(9th Cir. 1994). The Rule identifies six permissible grounds
for relief from a final judgment, order, or proceeding,
namely: “(1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud by the
adverse party; (4) the judgment is void; (5) the judgment has
been satisfied; (6) and other reason justifying
relief.” Fed.R.Civ.P. 60(b). Further, the Rule provides
that a motion brought under it “must be made within a
reasonable time - and for reasons (1), (2), and (3) no more
than a year after the entry of judgment or order of the date
of the proceeding.” Fed.R.Civ.P. 60(c).
Court begins by noting that the practically identical motions
currently before it are as muddled as the original motion for
withdrawal of reference. Debtor and her brother do not
articulate under which provision of Rule 60 the motions for
reconsideration and requests to vacate the September 6, 2016
Order are being sought. That being said, the Court has
reviewed the motions carefully and concluded that Debtor and
her brother have not presented any grounds for relief under
any of the six permissible grounds. See, e.g., Marly
Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 880 (9th Cir. 2009) (“[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, of if there
is an intervening change in the controlling law.”).
under the catchall provision of clause (6), Debtor and her
brother have not provided any evidence that demonstrates
“extraordinary circumstances” that would warrant
relief from the judgment. Straw v. Bowen, 866 F.2d
1167, 1172 (9th Cir. 1989) (a party is entitled to relief
under Rule 60(b)(6) if he demonstrates “extraordinary
circumstances” to justify relief). See also
Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004)
(“[a] party is entitled to relief under Rule 60(b)(6)
where ‘extraordinary circumstances prevented him from
taking timely action to prevent or correct an erroneous
judgment.”). Debtor and her brother have not met their
burden of showing the existence of
“‘extraordinary circumstances' justifying the
reopening of a final judgment.” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005) (citation omitted).
to the extent that Debtor and her brother may be relying on
Rule 60(b)(6), the Court considers the current motions
untimely because they were not filed within a reasonable time
after the entry of judgment. Hamilton, 374 F.3d at
825 (motions based on the first three clauses must be brought
within one year of the entry of judgment, while motions
relying upon the fourth, fifth or sixth clause must be
brought “within a reasonable time.”). The
bankruptcy was dismissed in September 2016 and this Court
issued its Order in the same month. Filing Rule 60 motions
eight months later is not within a reasonable time. Even if
Debtor and her brother's delay in moving for
reconsideration “may be attributable to inattention or
inexperience  neither deficiency constitutes an
‘extraordinary circumstance' that justifies Rule
60(b) relief.” Id.
foregoing reasons, the Motions for Relief from Judgment Under
Rule 60 [Doc. Nos. 19, 20] are DENIED and
the September 6, 2016 Order remains in effect.
In re Jordana Baumann, Bankr.
Case No. 16-00301, Docket No. 149 (September 1,