United States District Court, D. Idaho
SHERRI HANSEN, AN INDIVIDUAL; A.R. MINOR CHILD; AND L.R. MINOR CHILD; Plaintiffs,
U.S. BANK, NATIONAL ASSOCIATION; GREEN TREE FINANCIAL SERVICING, LLC; MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 1998-8; HAWLEY TROXELL ENNIS & HAWLEY LLP; and JOHN DOES 1-10; Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
before the Court is Plaintiffs' counsel Troy
Rasmussen's Motion for Relief from Judgment Pursuant to
Rule 60(b) (Dkt. 38), which asks the Court for relief from
its Order imposing Rule 11 sanctions against Mr. Rasmussen
(Dkt. 37). The Motion is fully briefed and at issue. Having
considered the submissions of the parties, the record, and
the applicable law, the Court issues this Memorandum Decision
underlying facts of this case and its procedural history are
discussed in the Court's prior Memorandum Decision and
Order dated September 4, 2015 (Dkt. 23). Accordingly, the
Court provides background only to the extent necessary to
resolve the pending Rule 60(b) Motion.
filed the Complaint in this matter on March 13, 2015. On
April 1, 2015, Hawley Troxell-which, at the time, was acting
as counsel for all Defendants-made demand upon
Plaintiffs' counsel, Troy Rasmussen, to dismiss the
Complaint within 21 days, pursuant to Federal Rule of Civil
Procedure 11(c)(2). Mr. Rasmussen was notified that if he did
not do as requested, Hawley Troxell would file a motion for
sanctions with the Court. Hawley Troxell served Mr. Rasmussen
with the motion and supporting memorandum in accordance with
Rule 11(c)(2). Mr. Rasmussen never responded, and did not
move to dismiss the Complaint. Instead, the case proceeded
and Hawley Troxell, now representing itself pro se,
filed a Motion for Summary Judgment on May 19, 2015. The
remaining Defendants (the “Green Tree
Defendants”) retained different counsel. They filed a
Motion to Dismiss on April 14, 2015. This Court granted both
Hawley Troxell's Motion for Summary Judgment and the
Green Tree Defendants' Motion to Dismiss in an oral
ruling on August 13, 2015. This ruling was explained further
in a written Memorandum Decision and Order issued on
September 4, 2015. Dkt. 23.
September 16, Defendants separately filed Motions for
Sanctions against Plaintiffs' counsel Troy Rasmussen,
pursuant to Rule 11. Dkts. 25, 26. The Defendants argued that
the Complaint was frivolous and lacking in both legal basis
and factual foundation. The Court granted Defendants'
Motions for Sanctions in its April 11, 2016 Order. Dkt. 33.
Therein, the Court indicated:
It is the Court's view that the most appropriate
sanction-that is, one which is sufficient to deter Mr.
Rasmussen and other attorneys from engaging in this type of
conduct-is to require Mr. Rasmussen to pay the Defendants the
reasonable attorney's fees incurred in defending against
this frivolous suit. Defendants have submitted affidavits
detailing all attorney's fees and costs which have been
incurred by their clients in defending against this action,
including those fees incurred in pursuing the motion for Rule
11 sanctions. Specifically, Hawley Troxell states that it has
incurred $9, 735.76 in attorney's fees and costs, while
counsel for the Green Tree Defendant reports incurring $25,
Apr. 11, 2016 Order at 6-7, Dkt. 33. Also in that
Order dated April 11, 2016, the Court granted Counsel time to
“submit a response detailing any argument he may have
that (1) the requested fees were not necessary to defend this
action, or (2) the amount requested is more than necessary to
deter repetition of this conduct” and to “include
in his response information about his financial resources and
ability to pay.” Id. at 8. Mr. Rasmussen filed
a one-paragraph response on April 25, 2016. Dkt. 34. The
Green Tree Defendants and Defendant Hawley Troxell filed
separate replies. Dkts. 35, 36.
18, 2016, the Court ordered Mr. Rasmussen to pay sanctions in
the amount of $34, 845.76. May 18 Order at 2, Dkt.
37. Of that total amount, Mr. Rasmussen was ordered to pay
$9, 735.76 to Hawley Troxell Ennis and Hawley LLP, and $25,
110.00 to the law firm of Lukins and Annis, P.S. Id.
Rasmussen now asks this Court, pursuant to Federal Rule of
Civil Procedure 60(b), for Relief from that Order imposing
Federal Rule of Civil Procedure 60(b), a court may grant a
party relief from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence; (3) fraud, misrepresentation,
or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
or (6) any other reason that justifies relief. Fed.R.Civ.P.
neglects to inform the Court which ground(s), of those set
forth in subsections (1)-(6), he intends to assert. The
Motion does not raise any arguments that indicate
“mistake, inadvertence, surprise, or excusable
neglect.” Nor does it allege that there is new
evidence, fraud, a void judgment, or a judgment that has been
satisfied, released, or discharged. Therefore, Mr. Rasmussen
is left with Rule 60(b)(6).
catch-all provision of Rule 60(b)(6) should be used
“sparingly as an equitable remedy to prevent manifest
injustice and . . . only where extraordinary circumstances
prevented a party from taking timely action or to prevent or
correct an erroneous judgment.” Latshaw v. Trainer
Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006).
To receive relief under Rule 60(b)(6), a moving party must
“show both injury and that circumstances beyond its
control prevented timely action to protect its
interests.” United States v. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).
“Neglect or lack of diligence is not to be remedied