United States District Court, W.D. Washington
JAMES B. PINKERTON, Plaintiff,
HANSON MOTORS, INC. and STEVEN W. HANSON, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO AMEND
JUDGMENT AND REVERSE JUDGMENT
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Plaintiff James
Pinkerton's (“Pinkerton”) emergency motion to
amend judgment (Dkt. 29) and motion to reverse judgment or
order (Dkt. 31). The Court has considered the pleadings filed
in support of and in opposition to the motions and the
remainder of the file and hereby denies the motions for the
reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
15, 2016, Pinkerton filed an employment discrimination
complaint against Defendants Hanson Motors, Inc., and Steven
Hanson (collectively “Hanson”). Dkt. 1.
December 15, 2016, Hanson moved to dismiss for insufficiency
of process and insufficiency of service of process. Dkt. 5.
On February 8, 2017, the Court granted the motion on the
merits and granted Pinkerton leave to perfect service. Dkt.
11. On February 17, 2017, Pinkerton filed an affidavit of
service of summons and complaint showing that Matthew Howard
served the papers on Frank Kersul. Dkt. 15.
March 8, 2017, Hanson moved to dismiss for insufficiency of
process and insufficiency of service of process. Dkt. 17. On
May 3, 2017, the Court granted the motion in part and denied
the motion in part. Dkt. 28. The Court also ordered as
Pinkerton must file an affidavit of service of summons and
complaint no later than May 19, 2017. Failure to comply or
otherwise respond will result in DISMISSAL without
prejudice without further order of the Court.
Failure to perfect service a third time will most likely
result in DISMISSAL without prejudice.
Id. at 5.
night, Pinkerton emailed Hanson's attorney, Ryan Hammond,
asking various questions regarding service. Dkt. 29-1 at 1.
On May 5, 2017, Mr. Hammond responded and informed Pinkerton
that the corporate defendant would stipulate to service via
the attorney if Pinkerton agreed to dismiss the individual
defendant without prejudice. Id. at 3. Pinkerton did
not respond to Mr. Hammond's email.
22, 2017, the Clerk noticed that Pinkerton had failed to file
an affidavit of service or otherwise respond to the
Court's order. Thus, the Clerk closed the case without
further order of the Court.
that day, Pinkerton filed an emergency motion to amend the
judgment. Dkt. 29. On June 26, 2017, Hanson responded. Dkt.
30. On June 30, 2017, Pinkerton filed a motion to reverse
judgment or order. Dkt. 31. On July 5, 2017, Hanson filed a
surreply. Dkt. 33. On July 8 and 11, 2017, Pinkerton filed
replies. Dkts. 34, 35. On July 17, 2017, Hanson filed a
response, Dkt. 36, and Pinkerton filed a reply, Dkt. 38. On
July 18, 22, and 23, 2017, Pinkerton filed letters and
exhibits in support of his motions. Dkts. 39-44.
motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for the [various] reasons . . . .”
Fed.R.Civ.P. 60(b). Although Pinkerton fails to explicitly
state the legal basis for his motions, he continually alleges
that Hammond engaged in numerous acts of fraud and
misconduct. See, e.g., Dkt. 31 at
11-12. Rule 60(b)(3) provides that a moving party may obtain
relief from adverse orders for “fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party.” “To prevail, the moving party must prove
by clear and convincing evidence that the verdict was
obtained through fraud, misrepresentation, or other
misconduct and the conduct complained of prevented the losing
party from fully and fairly presenting the defense.”
Casey v. Albertson's Inc., 362 F.3d 1254, 1260
(9th Cir. 2004) (quoting De Saracho v. Custom Food
Machinery, Inc., 206 F.3d 874, 880 (9th Cir.
case, Pinkerton has failed to show with clear and convincing
evidence that Mr. Hammond engaged in any misconduct of any
kind. Mr. Hammond relayed an offer of mutual stipulation, and
Pinkerton failed to respond. More importantly, Pinkerton
failed to comply with the Court's order of otherwise
responding. Pinkerton twice failed to properly serve Hanson,
and, having missed these deadlines to effectuate service, the
Court set a new deadline and explicitly warned Pinkerton of
the repercussions for missing the deadline. Not only did
Pinkerton fail to serve any defendant by that deadline,
Pinkerton also failed to reply to the Court in any manner