Filed: Dec. 18, 2019
Latest Update: Dec. 18, 2019
Summary: ORDER DISCHARGING ORDER TO SHOW CAUSE, VACATING JUDGMENT, AND GRANTING RULE 60(B)(6) RELIEF Re: Dkt. No. 54 PHYLLIS J. HAMILTON , District Judge . The court is in receipt of plaintiff Milos Leubner's ("plaintiff") "Motion to Alter or Dismiss the Court's Order to Dismiss Plaintiff's Action with Prejudice." Dkt. 54. In its August 28, 2019 order, the court explained that it would not consider plaintiff's untimely response to its August 7, 2019 order to show cause (Dkt. 48) because plaintiff's
Summary: ORDER DISCHARGING ORDER TO SHOW CAUSE, VACATING JUDGMENT, AND GRANTING RULE 60(B)(6) RELIEF Re: Dkt. No. 54 PHYLLIS J. HAMILTON , District Judge . The court is in receipt of plaintiff Milos Leubner's ("plaintiff") "Motion to Alter or Dismiss the Court's Order to Dismiss Plaintiff's Action with Prejudice." Dkt. 54. In its August 28, 2019 order, the court explained that it would not consider plaintiff's untimely response to its August 7, 2019 order to show cause (Dkt. 48) because plaintiff's ..
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ORDER DISCHARGING ORDER TO SHOW CAUSE, VACATING JUDGMENT, AND GRANTING RULE 60(B)(6) RELIEF
Re: Dkt. No. 54
PHYLLIS J. HAMILTON, District Judge.
The court is in receipt of plaintiff Milos Leubner's ("plaintiff") "Motion to Alter or Dismiss the Court's Order to Dismiss Plaintiff's Action with Prejudice." Dkt. 54. In its August 28, 2019 order, the court explained that it would not consider plaintiff's untimely response to its August 7, 2019 order to show cause (Dkt. 48) because plaintiff's purported hardships were "never specifically linked to either plaintiff's failures to respond or even to the relevant time period within which plaintiff was required to file responsive document." Dkt. 53.
In his present motion for relief under Rule 60(b), plaintiff provides a litany of reasons for his failure to timely respond to either this court's August 7, 2019 order to show cause or defendants' motion to dismiss plaintiff's second amended complaint (Dkt. 41). Such reasons include plaintiff's health, age, and stress, Dkt. 54 at 6, as well as the existence of "two wildfires within two miles" of his home, Dkt. 57 at 29, and the need to twice fix a water pump essential to his home's provision of water, Dkt. 54 at 26-27. Significantly, plaintiff specifically links the latter two hardships to "about the time" he was required to respond to defendants' motion to dismiss. Dkt. 57 at 29. The court finds that, under the circumstances of plaintiff's health condition, the stress inherent in the above-mentioned fires and need to secure the basic provision of water justify relief under Rule 60(b)(6).1
The court hereby ORDERS the following:
1. The court DISCHARGES its August 7, 2019 order to show cause (Dkt. 48).
2. The court VACATES its August 20, 2019 judgment (Dkt. 50).
3. Plaintiff is required to postmark any renewed opposition to defendants' motion to dismiss (Dkt. 41), including any argument relying upon his purportedly recently identified "new evidence," by January 8, 2020. If plaintiff fails to timely postmark any such opposition, the court will rely upon his August 26, 2019 opposition (Dkt. 51). Defendants are required to file any reply by January 22, 2020. After its receipt of the papers, the court will notify the parties if oral argument is necessary.
Finally, the court warns plaintiff that the existing relief is the last time it will indulge his untimeliness.
IT IS SO ORDERED.
