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Farrara v. Comcast Cable Communications Management, LLC

United States District Court, N.D. California

May 29, 2018

Heidi Farrara, Plaintiff,
v.
Comcast Cable Communications Management, LLC, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO SET ASIDE ENTRY FOR STIPULATION OF VOLUNTARY DISMISSAL AND ENTRY OF SETTLEMENT RE: DKT. NO. 42

          Yvonne Gonzalez Rogers United States District Court Judge

         Now before the Court is plaintiff's Motion to Set Aside Entry for Stipulation of Voluntary Dismissal and Entry of Settlement pursuant to Federal Rule of Civil Procedure 60.[1] (Dkt. No. 42 (“Motion”).) Plaintiff's motion is based principally on allegations that her attorney, Mark T. Gallagher of Cable Gallagher, acted without her knowledge and authority in settling the above-captioned case. While plaintiff fails to identify the provision(s) of Rule 60 by which she moves the Court to set aside the dismissal of the instant action, the nature of her allegations indicates that she seeks relief under Rule 60(b)(1), Rule 60(b)(3), Rule 60(b)(6), and Rule 60(d)(3). Having carefully considered the moving and opposing papers, and for the reasons set forth below, the court Denies plaintiff's motion.

         Pursuant to Federal Rule of Civil Procedure 60(b), the Court may relieve a party from a final judgment 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). A motion pursuant to Rule 60(b) must “be made within a reasonable time, ” which is capped within one year for motions seeking relief under Rules 60(b)(1), (2), and (3). Fed.R.Civ.P. 60(c)(1). In addition, Rule 60(d)(3) provides that Rule 60 “does not limit a court's power to . . . set aside a judgment for fraud on the court, ” and it does not have a specific limitations period. See Fuller v. Johnson, 107 F.Supp.3d 1161, 1170 (W.D. Wash. 2015) (“Motions under Rule 60(b) must be made within a reasonable time, . . . [but] Rule 60(d)(3) has no time limit . . . .”) (citation omitted); see also Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 640 n.10 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981) (“There is no statute of limitations for fraud on the court.”).

         This Court entered final judgment on October 17, 2016 (Dkt. No. 41), and plaintiff did not file the instant motion until just over one year later, on October 18, 2017. Thus, to the extent plaintiff seeks relief from judgment under Rules 60(b)(1) or 60(b)(3), the motion is untimely. See DuFour v. Allen, No. 2:14-cv-05616-CAS(SSx), 2017 WL 3013240, at *3 (C.D. Cal. July 12, 2017) (“To the extent plaintiff seeks to set aside a judgment pursuant to Rule 60(b)(1), plaintiff's motion is untimely because he filed it more than one year after the . . . judgment. . . . Thus, the Court is ‘without jurisdiction to consider' plaintiff's Rule 60(b)(1) motion.” (citation omitted) (quoting Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989)); Inland Concrete Enters., Inc. v. Kraft, 318 F.R.D. 383, 411 (C.D. Cal. 2016) (“Rule 60(c) imposes an inflexible one-year time limit on Rule 60(b)(3) motions.”).[2] Moreover, the Ninth Circuit has cautioned:

Judgments are not often set aside under Rule 60(b)(6). Rather, the Rule 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. Accordingly, a party who moves for such relief must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the action in a proper fashion.

Latshaw, 452 F.3d at 1103 (citations, internal quotation marks, and ellipsis omitted). The “extraordinary circumstances” standard for assessing a Rule 60(b)(6) motion is intended to avoid a mere “second bite at the apple.” In re Pac. Far E. Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989).

         Here, the record shows that plaintiff and defendant signed and entered into a binding and enforceable settlement agreement on September 8, 2016 whereby plaintiff agreed to release all claims (known and unknown) and dismiss the lawsuit with prejudice, in exchange for $5, 000. (See Declaration of Nicole A. Legrottaglie Exh. A, Dkt. No. 44-1.) Although plaintiff attributes fault to her counsel for alleged misconduct, she fails to explain why she waited over one year to file the instant motion, despite that it appears from her declaration that she attempted to contact Mr. Gallagher as early as November 2016 to discuss the settlement and dismissal of the lawsuit.[3](See Declaration of Heidi Farrara at ECF 9, ...


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