Re: Deceptive practices by christians (facts of the case)
Date: February 29, 2008 01:30AM
‘IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Lynn, as personal representative
for the estate of Stickel,
Plaintiff,
vs.
Johnny L. Chambers; Natalie A.
Chambers; Tatjana Guenther,
Defendant.
No. CV 99-2189-PHX-MHM
ORDER
Presently pending before the Court are two letters from Defendant Tatjana Guenther.
The first letter the Court has construed as a Motion to Vacate the Judgment (Doc. 40). The
second letter the Court has construed as a Motion to Remove the Case (Doc. 42), however
this letter looks like a continuation of Defendant’s request to vacate the judgment. Plaintiff
has filed a Response. The Court considers the papers submitted and issues the following
Order.
BACKGROUND
This lawsuit was filed on December 14, 1999. Defendant Tatjana Guenther was
personally served with a summons and complaint on May 14, 2001. Judgment was entered
against all Defendants, including Ms. Guenther on April 5, 2002.
Defendant Guenther’s now requests to vacate the judgment based on the following:
(1) it is unfair that she has been subject to post-judgment collection efforts in Oklahoma, and
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(2) Jeff and Sandy Chrisman, who are not parties to this action, are persons whose character
Ms. Guenther questions.
LEGAL STANDARD
Rule 60(b) of the Federal Rules of Civil Procedure provides as follows:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment. The motion shall be made
within a reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or taken.
DISCUSSION
Initially, the Court notes that Defendant Guenther did not serve the instant Motions
on the Plaintiff. This is in direct violation of Rule 5 of the Federal Rules of Civil Procedure.
Defendant is directed to serve on the Plaintiff any further documents that she files in this
case. Defendant also is warned that failure to serve documents on the Plaintiff will not be
looked upon kindly by this Court.
Over five years have passed since entry of judgment in this case. Therefore, pursuant
to Rule 60(b), any request to vacate the judgment for reasons (1), (2) or (3) of Rule 60(b) is
untimely. Ms. Guenther has not suggested a basis under reason (5) that the judgment has
been satisfied, released, or discharged. Thus, Defendant’s Motion must be considered under
reason (4) that the judgment is void or under reason (6) that other reasons justify relief from
the operation of the judgment.
A judgment is void only if the court that rendered the judgment lacked jurisdiction
over either the subject matter or the parties, or acted in a manner inconsistent with due
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process of law. In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985). Ms.
Guenther has made no showing of any facts to suggest that the judgment here is void.
To obtain relief under Rule 60(b)(6), a party must demonstrate “extraordinary
circumstances which prevent or render him unable to prosecute [the case].†Martella v.
Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971). The party must
demonstrate both injury and circumstances beyond her control that prevented her from
proceeding with the defense of the action in a proper fashion. United States v. Alpine Land
& Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Ms. Guenther’s primary issue with
the judgment seems to be that the judgment from this Court was registered with the United
States District Court in Oklahoma pursuant to 28 U.S.C. § 1963. Ms. Guenther also takes
issue with the alleged post judgment conduct by persons who are not parties to this lawsuit.
Ms. Guenther states that the reason she did not file any sort of responsive pleading in this
case was because she had just moved “out of†Tulsa, Oklahoma and was “going on a
missionary trip out of the country and firmly believe that [she] was innocent. . .†Def.’s
March 26, 2007 Letter to the Court. These assertions are not grounds for vacating the
Court’s judgment under Rule 60(b)(6). Defendant has not demonstrated injury and
circumstances beyond her control that prevented her from proceeding with the defense of this
action. Accordingly, Defendant’s Motion to Vacate the Judgment is denied.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Defendant’s letter construed as a Motion to Vacate the
Judgment (Doc. 40) is denied.
IT IS FURTHER ORDERED that Defendant’s letter construed as a Motion to
Remove the Case (Doc. 42) is denied.
DATED this 10th day of July, 2007.