United States District Court, N.D. California
ORDER DENYING MOTION TO SET ASIDE JUDGMENT
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
order holds that plaintiff did not file his motion to set
aside a final judgment within the one year limitation under
Rule 60(c). Plaintiff's motion is
Tom McMillin owned and operated a private, armed security
company. In October 2006, plaintiff heard what seemed to be a
gunshot near his house in Foster City. He saw a group of six
or seven individuals carrying what appeared to be a rifle and
a handgun. He contacted the Foster City police to report the
incident. Plaintiff then detained the individuals until the
police arrived. The police found the firearms were found to
be “a bb gun, pellet gun, and two air-soft gun-like
firearms designed to resemble lethal firearms” (Dkt.
No. 26 ¶¶ 23-26). One year later, the San Mateo
County District Attorney's Office and Foster City Police
Department filed a criminal complaint alleging 21 counts
against plaintiff in connection with the above described
events. The Bureau of Security & Investigative Services
assured the deputy district attorney that a no-contest plea
would not impact plaintiff's license to carry a firearm
and private patrol operator's license. Plaintiff relied
on their assurances. Plaintiff subsequently pled no contest
to one count of disturbing the peace (a new charge). The
District Attorney's Office then dropped the other 21
counts against plaintiff. The California state trial court
eventually overturned plaintiff's no-contest plea and all
charges were therefore dismissed (Dkt. Nos. 26 ¶¶
27-29; 53 ¶¶ 4-5, 26).
2009, plaintiff, represented by counsel, filed a civil action
against Foster City and several police officers in state
court. The trial judge dismissed the case in full. The Court
of Appeal affirmed (Dkt. No. 26 ¶ 30).
2011, plaintiff, represented by counsel, filed the instant
action against defendants Foster City, a municipal
corporation operating and existing under the laws of the
State of California, Foster City Police Department, Officers
Douglas Nix and Pierre Morrison, and other individuals of the
Foster City Police Department. The complaint alleged one
claim under 42 U.S.C. § 1983 (Dkt. Nos. 26). Defendants
moved to dismiss the claim (Dkt. No. 32). In July 2012, the
undersigned dismissed the complaint in full on grounds of
preclusion, statute of limitations, failure to state a claim,
and lack of ripeness (Dkt. No. 38). The order gave plaintiff
fourteen days to move for leave to file an amended complaint
(ibid.). After plaintiff failed to act within the
deadline, defendants moved to dismiss the action and for
entry of judgment (Dkt. No. 39). An order then issued
plaintiff to show cause for failure to comply with the prior
order's deadline (Dkt. No. 40). Plaintiff again failed to
respond. An order subsequently dismissed plaintiff's
action for failure to comply with the order. Final judgment
entered in favor of defendants in September 2012 (Dkt. Nos.
in 2010, the Bureau of Security & Investigative Services
began investigating plaintiff. The details of the
investigation remain unclear to this order. After the
investigation ended, in October 2012, the Bureau sought to
revoke plaintiff's professional licenses based on his
no-contest plea in 2008. The Bureau and plaintiff came to an
agreement to place plaintiff's licenses on probationary
status and for plaintiff to pay $5, 400 as a fine (Dkt. No.
53 ¶¶ 6, 27).
2013 through 2019, plaintiff filed several petitions for
writs of error coram nobis and vobis in state court to vacate
the judgment and set aside his no-contest plea. The trial
court and the California Court of Appeal for the First
District denied all of his petitions. The Supreme Court of
California likewise denied his petition in July 2019 (Dkt.
No. 53 ¶¶ 7-9).
now moves in propria persona to set aside final
judgment entered against him (Dkt. No. 53). Plaintiff claims
he learned new facts regarding the status of his license in
2012. Plaintiff asks this Court to set aside and vacate the
criminal judgment in the state court and to re-open this case
(Dkt. No. 53 at 15). Defendants oppose. Defendants also
request judicial notice (Dkt. Nos. 55; 55-1).
this order Denies defendants' request
for judicial notice. Defendants' request for judicial
notice includes plaintiff's original and amended
complaint, the order to show cause, and judgment. All of
which are available through the Court's ECF docket.
this order holds that plaintiff did not file his motion to
set aside final judgment within the one year limitation
required by Rule 60. To seek relief from judgment, order, or
proceeding, Rule 60(c) requires that “the motion be
made within a reasonable time.” If relief is sought due
to a mistake, newly discovered evidence, or misrepresentation
by the opposing party, then the motion must be brought
“no more than a year after the entry of the judgment or
order or the date of the proceeding.” Id.
this Court entered judgment in September 2012. The Bureau
placed plaintiff's licenses on probation in 2012.
Plaintiff learned about the defendants' failure to uphold
their assurance that his licenses would not be affected in
2012. Plaintiff sat on his hands for seven years before
filing the current motion in 2019. This delay is neither