United States District Court, D. Kansas
RONALD E. DAVIS, Plaintiff,
BANK OF AMERICA, et al., Defendants.
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
matter comes before the court on pro se plaintiff Ronald E.
Davis's Motion for Relief from Judgment or Order (Doc.
66), Motion for Relief from a Judgment or Order (Doc. 67) and
Motion for Disqualification of Justice, Judge, or Magistrate
Judge (Doc. 68). Plaintiff seeks review of this court's
order denying his motion for summary judgment and granting
defendant Bank of America, N.A.'s (“BANA”)
motion for summary judgment (Doc. 64). Plaintiff also seeks
review of this court's order denying his motion for
reconsideration of this court's dismissal of defendant
California Franchise Tax Board (Doc. 63). Plaintiff further
requests this court disqualify itself from the case, arguing
the court unfairly favored the defendants. For the following
reasons, plaintiff's motions are denied.
Rule 60(b) of the Federal Rules of Civil Procedure, a court
has the discretion to “relieve a party or its legal
representative from a final judgment, order, or proceeding .
. . .” Relief under Rule 60(b) is “extraordinary
and may only be granted in exceptional circumstances.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1009
(10th Cir. 2000). These “exceptional
circumstances” are specifically enumerated in Rule
(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;
(6) any other reason that justifies relief.
60(b) motion is “not the opportunity for the court to
revisit the issues already addressed in the underlying order
or to consider arguments and facts that were available for
presentation in the underlying proceedings.” Nutter
v. Wefald, 885 F.Supp. 1445, 1450 (D. Kan. 1995) (citing
Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991)).
seeks Rule 60(b) relief first on the court's order
denying his motion for summary judgment and granting
BANA's motion for summary judgment. Plaintiff argues he
is entitled to relief under Rule 60(b)(1), (3), (4), and (6).
Plaintiff filed a lengthy pleading, which the court will
liberally interpret, fulling recognizing his pro se status.
64, the court denied plaintiff's motion for summary
judgment, finding plaintiff failed to state a claim for
relief or provide any evidence that would amount to a cause
of action or establish the elements of a tort. The court
acknowledges that plaintiff, in his various pleadings,
accused defendants of unlawfully garnishing wages from his
bank account. Plaintiff has repeatedly reiterated that his
case is not a tax case and instead is a claim for
constitutional violations, fraud, theft, and negligence.
Plaintiff has also cited a great deal of case law and
statutory law, most of which, however, is irrelevant to his
legal claims. At the summary judgment stage, plaintiff must
plead all of the legal elements of his claims and have
evidentiary support for these elements. Only if the evidence
shows there are no issues of material fact and that plaintiff
is entitled to the relief he has pled will the court grant
summary judgment in his favor. The plaintiff failed to carry
his burden in establishing he is entitled to summary
judgment. Plaintiff provided no evidence, beyond conclusory
statements, to support his claims. The court finds no reason
to set aside its decision to deny plaintiff's summary
Doc. 64, the court granted BANA's motion for summary
judgment because the undisputed evidence established it did
not act improperly when it complied with the withholding
order it received from the California Franchise Tax Board. In
his Rule 60(b) motion, plaintiff argues this order is void
because it is fraudulent and because the court lacked subject
matter jurisdiction to consider anything that occurred after
the funds were garnished from his bank account. Plaintiff
claims that once the funds were removed from his account, the
unlawful activity had occurred and liability was established.
He argues the court cannot consider that the funds were
eventually refunded to his account because defendants did not
plead an affirmative defense of refund.
court summarizes plaintiff's arguments only to
demonstrate that it has read and is attempting to interpret
his pleadings. Nothing, however, that he has argued
establishes that he is entitled to relief under Rule 60(b).
Plaintiff's motion consists mainly of arguments raised in
prior pleadings. He has not shown there are any exceptional
circumstances that would justify this court setting aside its
order. As mentioned above, a Rule 60(b) motion is not an
opportunity to relitigate the issues underlying
plaintiff's claim, and plaintiff's motion is largely
an attempt to reargue why he believes he should prevail.
Plaintiff does claim, under Rule 60(b)(3) and (4), that this
court's order is void because it is fraudulent and
because the court lacks subject matter jurisdiction.
Plaintiff's allegations, however, are misguided. The
court already determined it had subject matter jurisdiction
over the case on the basis of diversity jurisdiction.
See 28 U.S.C. §1332. Further, ...