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Kerns v. Wenner

United States District Court, S.D. California

November 20, 2017

LARRY D. KERNS, Plaintiff,


          WILLIAM Q. HAYES United States District Judge

         The matters before the Court are Plaintiff's motion to rule on all matters (ECF No. 73), motion to reconsider the exclusion of ERISA rules and regulations (ECF No. 80), motion to reduce complaint (ECF No. 83), motion to forfeit his trial by jury (ECF No. 87), motion for entry of default judgment (ECF No. 89), motion for summary judgment (ECF No. 108), motion to reconsider that entry of default judgment be entered against Defendant Wenner (ECF No. 122), motion for forfeiture of case (ECF No. 124), two motions to strike documents from the record (ECF No. 126, 130), a supplemental motion to the pending motion for default judgment (ECF No. 132), and two motions to increase the damages alleged in the complaint (ECF Nos. 136, 140).

         I. Background

         On September 28, 2016, Plaintiff Larry D. Kerns initiated this action by filing the complaint against Defendants Mathew J. Wenner, Hugh Gaylord, Edward Treacy, Thomas Sarnecki, George Tedeschi, Charles Kamen and John D. Bachler.[1] (ECF No. 1). Plaintiff brings causes of action for mail fraud and violation of the Americans with Disabilities Act (“ADA”) and seeks $3, 000, 000 in punitive damages. Plaintiff allegations relate to Plaintiff's benefits under the GCIU-Employment Retirement Fund. Id.

         II. Motion to Rule on All Matters (ECF No. 73) and Motion to Forfeit Trial by Jury (ECF No. 87)

         On June 8, 2017, Plaintiff filed a document titled “PLAINTIFF; KERNS; HEREBY; OFFERS TO FORFEIT HIS RIGHT TO A JURY TRIAL; (IF HIS MOTION FOR DEFAULT JUDGMENT IS NOT GRANTED); AND SUBMITS, THIS MOTION: FOR HONORABLE JUDGE HAYS; TO RULE ON; ALL MATTERS; REGARDING THIS CASE. (IF A FEW CONDITIONS; CAN BE APPROVED; BY ALL PARTIES) (Plaintiff; requests a 1 hour hearing; for Judge Hays' and defendant's questions).” (ECF No. 73). Plaintiff states that he will forfeit his right to a jury trial if the Court “relies solely on plaintiff's many filed documents” and any evidence submitted by Defendant to make a ruling, the parties each pay their own legal expenses, and Defendant waives all discovery. (ECF No. 73). On August 21, 2017, Plaintiff filed a second motion which also asserts that Plaintiff will forfeit his right to a jury trial if the following conditions are accepted by Defendant and the Court: (1) the parties waive discovery and the Court rules on whether punitive awards are warranted; (2) each party pays their own legal expenses; and (3) Defendant does not request and is not awarded money from Plaintiff. Id. (ECF No. 87 at 4-5). Plaintiff also requests, “that Honorable Judge William Q. Hayes; personally; is judge in this matter.” (ECF No. 102).

         Plaintiff has not established any legal or factual basis that entitles him to the ruling he seeks. Plaintiff's motions are denied. (ECF Nos. 73, 87).

         III. Motion to Reconsider the Exclusion of ERISA Rules and Regulations (ECF No. 80).

         On August 14, 2017, Plaintiff filed a motion for reconsideration of the Court's prior Order denying his motion to exclude rules and regulations under the Employee Retirement Income Security Act (“ERISA”). (ECF No. 80). Plaintiff contends that he “previously, made an error; by considering the ‘delay in receiving benefits'; statement by defence; so ridiculous that he did not argue the matter and would like to argue that matter; now.” Id. at 3. Plaintiff contends ERISA is inapplicable to this matter because the Complaint alleges “wanton and willful misconduct; that occurred; DURING a 13 year period of time” rather than a thirteen year delay in receiving benefits. Id. at 4.

         In opposition, Defendant contends that Plaintiff fails to offer any new facts or law relevant to the Court's previous ruling. (ECF No. 106). Further, Defendant contends that there is no authority to support Plaintiff's position that his claims are exempted from ERISA. Id.

         Federal Rule of Civil Procedure 60(b) provides that a

court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (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 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(1-6). The burden of proof is on the party bringing the Rule 60(b) motion. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992). Civil Local Rule 7.1(i) provides that when a party moves the Court for reconsideration of a prior order, the party must identify “what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application.” CivLR 7.1(i).

         The Court's prior order stated, “The Court concludes that Plaintiff's allegations relating to damages for delay in receiving benefits related to the administration of a plan covered by ERISA. Plaintiff's motion to exclude ERISA rules and regulations is denied.” (ECF No. 76 at 2-3). In the current motion, Plaintiff fails to identify any new or different facts and circumstances, or any other grounds demonstrating that relief from the Court's prior order is appropriate. Plaintiff's contention that he did not adequately argue a point in a previous motion does not support reconsideration. Further, the Court properly determined that any exclusion of ERISA rules and regulations is inappropriate at this stage in the proceedings. Although Plaintiff brings claims for mail fraud and violation of the ADA, the allegations of the Complaint relate to the administration of a plan covered by ERISA. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44 (1987) (“ERISA comprehensively regulates, among other things, employee welfare benefit plans ...

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