United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Mike Hood's
Request for Relief from Dismissal filed January 9, 2017. Doc.
28. Defendant Farmers Insurance Exchange
(“Farmers”) filed a response on January 23, 2017.
Doc. 29. Mr. Hood did not file a reply. The Honorable James
O. Browning referred this case to me pursuant to 28 U.S.C.
§§ 636(1)(B), (b)(3) and Va. Beach Fed. Sav.
& Loan Ass'n v. Wood, 901 F.2d 849 (10th Cir.
1990), to perform any legal analysis and recommend to the
Court an ultimate disposition of the case. Doc. 30. Having
reviewed the submissions of the parties and the relevant law,
I find that Mr. Hood's request for relief from dismissal
is without merit and recommend that the Court DENY his motion
to reopen this case.
April 14, 2016, I issued an order to show cause that required
Mr. Hood to file a written explanation showing good cause why
his class action complaint should not be dismissed. Doc. 17
at 2. The order to show cause explained that as a pro se
party, Mr. Hood could not bring claims on behalf of others.
Id. Mr. Hood's response to the order to show
case was initially due no later than May 5, 2016.
Id. At the parties' request, Judge Browning
stayed the case for 60 days (Doc. 16), and I amended my order
to make Mr. Hood's response to the order to show cause
due 14 days after the stay was lifted (Doc. 18). Mr. Hood was
required to respond to the order to show cause no later than
July 6, 2016. Doc. 22. Mr. Hood did not file a written
response to the order to show cause. Consequently, I issued
my Proposed Findings and Recommended Disposition
(“PF&RD”) recommending that the Court dismiss
Mr. Hood's class action complaint without prejudice, and
allowing him 21 days after adoption of the PF&RD to amend
his complaint. Doc. 23 at 3. The PF&RD advised Mr.
Hood-in bold face type-that he could file written objections
to the PF&RD and warned him that failure to file such
objections would waive appellate review. Id. Mr.
Hood did not file any objections to the PF&RD.
August 31, 2016, Judge Browning adopted my PF&RD and
granted Mr. Hood 21 days to amend his complaint. Doc. 24. On
September 9, 2016, during the 21-day period, the Court
amended its memorandum opinion and order adopting the
PF&RD and gave Mr. Hood 21 days from its amended order to
file an amended complaint, effectively giving Mr. Hood 30
days to file an amended complaint. Doc. 25 at 9. In his
memorandum opinion and order adopting the PF&RD, Judge
Browning warned, “[i]f Hood fails to amend his
complaint within twenty-one days, the Court will dismiss his
Complaint with prejudice.” Id. at 9. Mr. Hood
did not file an amended complaint. Accordingly, Judge
Browning issued a Final Judgment on October 31, 2016,
dismissing Mr. Hood's complaint with prejudice. Doc. 26.
More than two months after the case was closed, and six
months from the deadline to respond to the order to show
cause, Mr. Hood filed the instant motion requesting relief
Hood asks that the Court reopen the case pursuant to Rule
60(b)(1). Federal Rule of Civil Procedure 60(b)(1) provides
that “the court may relieve a party . . . from a final
judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect.”
Fed.R.Civ.P. 60(b)(1). Rule 60(b) relief is
“extraordinary and may only be granted in exceptional
circumstances.” Zurich N. Am. v. Matrix Serv.,
Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (internal
citation and quotation omitted). “Parties seeking
relief under Rule 60(b) have a higher hurdle to overcome
because such a motion is not a substitute for an
appeal.” Id. To justify Rule 60(b) relief, a
party's “litigation mistake” or
“neglect” must be “excusable.”
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576
(10th Cir. 1996). “Carelessness by a litigant . . .
does not afford a basis for relief under Rule
60(b)(1).” Pelican Production Corp. v. Marino,
893 F.2d 1143, 1146 (10th Cir. 1990). The Supreme Court has
explained that “for purposes of Rule 60(b),
‘excusable neglect' is understood to encompass
situations in which the failure to comply with a filing
deadline is attributable to negligence.” Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,
507 U.S. 380, 394 (1993). “With regard to determining
whether a party's neglect of a deadline is excusable,
” district courts should take “account of all
relevant circumstances surrounding the party's
omission.” Id. at 395. “Relevant factors
include the danger of prejudice to the [opposing party], the
length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether
the movant acted in good faith.” Jennings v.
Rivers, 394 F.3d 850, 857 (10th Cir. 2005) (internal
citation and quotation omitted). The Tenth Circuit has stated
that “fault in the delay remains a very important
factor-perhaps the most important single factor-in
determining whether neglect is excusable.” Id.
at 856-57 (quoting United States v. Torres, 372 F.3d
1159, 1163 (10th Cir. 2004) (analyzing the excusable neglect
standard in the context of Federal Rule of Appellate
Procedure 4(b)(4), where the party filed an untimely notice
of appeal)). The movant bears the burden of demonstrating the
existence of excusable neglect that would entitle him to
relief. See, e.g., Culbertson v. Holder,
2014 WL 3845129, at *2 (D. Kan. Aug. 5, 2014) (“The
party making the motion has the burden of pleading and
proving excusable neglect.”); Schnuelle v. C &
C Auto Sales, Inc., 196 F.R.D. 395, 397 (D. Kan. 2000)
(“The burden falls upon the party moving to have the
judgment set aside to both plead and prove mistake,
inadvertence, surprise, or excusable neglect.”).
motion, Mr. Hood explains that he did not intend to file the
case as a class action. Doc. 28 at 3. He believed that by
agreeing to “a stipulation” with defendant, he
had agreed he was proceeding only on behalf of himself. Doc.
28 at 5. The parties submitted two joint motions: one
accepting service by Farmers and to dismiss certain
defendants (Doc. 13); and one to stay the litigation (Doc.
14). Mr. Hood does not indicate to which
“stipulation” he refers. Regardless, neither of
these motions-or the orders granting them-indicates that the
action was not filed on behalf of a class or that those
allegations should be stricken. Docs. 13-16. Further, the
stipulations did not-and could not-amend Mr. Hood's
complaint or substitute as a response to the order to show
cause. See Fed. R. Civ. P. 15 (procedure for
amending a complaint); Doc. 17 (order to show cause filed
after the joint motions had been granted).
Hood's explanation for his failure to meet the
Court's deadlines does not constitute excusable neglect.
As Farmers points out, the Court issued five orders,
including the recommended disposition that notified Mr. Hood
of this obligation to take action to avoid dismissal. Doc. 29
at 5 (citing Docs. 17, 22, 23, 24, and 25). Mr. Hood failed
to respond to the order to show cause, object to the
PF&RD, or amend his complaint. Mr. Hood contends that he
was “away from the area because he work required him to
relocate to Tennessee” and that “his office
assistant no longer worked for [him].” Doc. 28 at 5.
Mr. Hood does not explain why being away from the area
prevented him from participating in this case. Mr. Hood does
not contend that he did not receive the orders of the Court
or that his remoteness was coupled with a circumstance that
would prevent him from sending and receiving mail or email,
or otherwise prevent the diligent pursuit of his claims.
Hood asks the Court to forgive his failure to respond to the
Court's orders, file objections, or amend his complaint
because he is not an attorney. Id. “Although
‘[a] pro se litigant's pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers, '”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir.1991)), “[t]his court has
repeatedly insisted that pro se parties follow the same rules
of procedure that govern other litigants.” Id.
(quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir.1994) (internal quotation marks omitted)). Mr. Hood had
numerous opportunities to adhere to the rules and orders of
this Court but failed to do so. I do not recommend reopening
a case that has been closed since October 31, 2016, based
solely on Mr. Hood's pro se status.
reasons stated above, I recommend that the Court DENY Mr.
Hood's Request ...