United States District Court, S.D. California
LARRY D. KERNS, Plaintiff,
MATHEW J. WENNER, HUGH GAYLORD, EDWARD TREACY, THOMAS SARNECKI, GEORGE TEDESCHI, CHARLES KAMEN, and JOHN D. BACHLER, Defendants.
WILLIAM Q. HAYES United States District Judge
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).
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. (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.
Motion to Rule on All Matters (ECF No. 73) and Motion to
Forfeit Trial by Jury (ECF No. 87)
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).
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).
Motion to Reconsider the Exclusion of ERISA Rules and
Regulations (ECF No. 80).
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.
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.
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).
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 ...