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Davis v. State of California

United States District Court, D. Kansas

January 17, 2018

RONALD E. DAVIS, Plaintiff,
v.
STATE OF CALIFORNIA, et al., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         On October 20, 2017, the Court issued a Memorandum and Order in this case granting Defendants State of California and California Franchise Tax Board's (“CFTB”) Motions to Dismiss, and denying as moot Defendants State of California and CFTB's Motion for Summary Judgment (Doc. 40). The Court also ordered Plaintiff to show cause by no later than November 13, 2017 why Defendant California State Agency Insurer should not be dismissed because it is a fictional entity and because Plaintiff failed to effect proper service of process under Fed.R.Civ.P. 4. This matter comes before the Court on Plaintiff's Motion for Relief from Judgment (Doc. 42), “Motion for Leave of Court to Amended [sic] and Correct Typo Error in Reference to Prior Supreme Court Reference” (Doc. 47), and Motion for Disqualification of Judge (Doc. 48). The Government responded to Plaintiff's motion for relief from judgment, but not his two other motions. The Court is now prepared to rule. For the reasons explained below, the Court denies Plaintiff's motion for relief from judgment, grants his motion for leave to correct typo, and denies his motion for disqualification of judge. Additionally, because Plaintiff has failed to show cause why Defendant California State Agency Insurer should not be dismissed, the Court dismisses California State Agency Insurer from this case. Accordingly, this case is dismissed in its entirety.

         I. Order to Show Cause

         In its Memorandum and Order issued on October 20, 2017, the Court noted Defendants' argument that Defendant California State Agency Insurer does not exist, and explained that it appeared Plaintiff had not properly served this Defendant under Fed.R.Civ.P. 4. Accordingly, the Court ordered Plaintiff to show cause by no later than November 13, 2017 why this Defendant should not be dismissed from this case.[1] The time for Plaintiff to respond to the Court's order has long passed without a response from Plaintiff. Therefore, the Court dismisses California State Agency Insurer from this case.

         II. Motion for Leave to Correct Typo

         Plaintiff moves for leave to correct a reference to Monroe v. Pape[2] he apparently made in his reply in support of his motion for relief from judgment.[3] Plaintiff states he incorrectly referred to the case as “Monroe v. Tate.” For good cause, the Court grants Plaintiff's motion. Rather than directing Plaintiff to file an amended reply brief, the Court simply recognizes that the case Plaintiff refers to in his reply is Monroe v. Pape.

         III. Motion for Relief from Judgment

         Plaintiff moves for relief from judgment[4] under Fed.R.Civ.P. 60(b). “Relief under Rule 60(b) is extraordinary and limited to certain exceptional circumstances.”[5] Under Rule 60(b), the court may relieve a party or its legal representative from a final judgment, order, or proceeding 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 ...

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