United States District Court, D. Oregon
Barry Joe Stull, Portland, OR, Plaintiff pro se.
David A. Ernst and Timothy Cunningham, DAVIS WRIGHT TREMAINE, LLP, Portland, OR, Of Attorneys for Defendants Lewis & Clark College, Tim O'Dwyer, Mark Nisbett, Tim Burgard, and Nick Mobley.
Elizabeth C. Knight, DUNN CARNEY ALLEN HIGGINS & TONGUE LLP, Portland, OR, Of Attorneys for Defendants Nicholas Dazer and Bullivant Houser Bailey, P.C.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
On August 28, 2012, Plaintiff Barry Joe Stull ("Stull"), filed suit against Defendants, asserting claims relating to injuries suffered by Stull when he was allegedly forcibly evicted from a building on the Lewis & Clark campus. Dkt. 2. On December 5 and 6, 2012, Defendants filed motions to dismiss Stull's complaint for lack of subject matter jurisdiction and failure to state a claim. Dkts. 17 & 20. Stull did not file any response to the motions to dismiss, despite the Court giving Stull notice and additional time. On April 29, 2013, Magistrate Judge John V. Acosta issued Findings and Recommendations recommending that the Court grant Defendants' motions to dismiss and dismiss the case with prejudice. Dkt. 34. That same day, the Findings and Recommendation was mailed to Stull. Dkt. 35. It was not returned as undeliverable.
Stull did not file any objections to Judge Acosta's Findings and Recommendation. On May 22, 2013, this Court adopted Judge Acosta's Findings and Recommendation, dismissed the case with prejudice, and entered a final judgment. Dkts. 37 & 38. The Court's Opinion and Order and the Judgment were mailed to Stull. Dkt. 39. These were also not returned as undeliverable.
On May 22, 2014, Stull filed a Motion for Relief from Judgment, pursuant to Rule 60, which is currently before the Court. Dkt. 42. For the reasons set forth below, the Court denies Stull's motion.
Federal Rule of Civil Procedure 60(b) governs reconsideration of final orders of the district court. Rule 60(b) allows a district court to relieve a party from a final judgment or order for the following reasons: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence...; (3) fraud... by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied... or (6) any other reason that justifies relief." Fed.R.Civ.P. 60(b). A motion under Rule 60(b) must be made within a reasonable time and, in any event, "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed.R.Civ.P. 60(c). The party making the Rule 60(b) motion bears the burden of proof. See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992).
Stull styles his motion as one under rule 60(6). It is unclear whether Stull means to assert his motion under Rule 60(b)(6), or generically under Rule 60(b) without identifying the specific subsection of Rule 60 on which he relies. Because the Court construes pro se filings liberally, the Court analyzes Stull's motion under the only potentially applicable subsections, Rule 60(b)(1) and Rule 60(b)(6).
A. Motion for Relief from Judgment Under Rule 60(b)(6)
Rule 60(b)(6) is the catch-all provision of Rule 60, which provides for relief from a final order or judgment for "any other reason that justifies relief." "A movant seeking relief under Rule 60(b)(6) must show extraordinary circumstances' justifying the reopening of a final judgment." Jones v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)). This rule is "used sparingly as an equitable remedy to prevent manifest injustice.'" Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010) (quoting United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993)).
Stull argues that he is entitled to relief from the final judgment dismissing his case because he did not receive in the mail a copy of the Findings and Recommendation mailed to him on April 29, 2013, or this Court's Opinion and Order and Judgment mailed to him on May 22, 2013. Stull asserts that the clinic to which the documents were mailed was "undergoing changes" and that the mail was lost. Stull further asserts that he contacted the court clerk in September 2013 and that is when he learned of the Findings and Recommendation, Opinion and Order, and Judgment. After ...