Opinion
No. CIV S-07-2368 JAM GGH PS
06-07-2013
JAY L. SELLERS, Plaintiff, v. PINE TREE GARDENS, LEIGH, Defendants.
FINDINGS AND RECOMMENDATIONS
On May 17, 2013, plaintiff filed a request to vacate judgment, which will be construed as a motion under Fed. R. Civ. P. 60(b).
"A motion under Rule 60(b) must be made within a reasonable time - and for reasons (1) (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1).
The motion is difficult to decipher but appears to claim that either this court or the Ninth Circuit Court of Appeals fraudulently falsified records in plaintiff's case. (Doc. no. 27 at 2.) Judgment was entered on March 13, 2008. Such a basis for relief under Rule 60(b)(3) for fraud must have been brought within one year of that date. Therefore, the motion will be denied as untimely, to the extent that it has not been rendered inoperative by plaintiff having filed an appeal with the Ninth Circuit, which was dismissed on March 18, 2009.
Accordingly, IT IS HEREBY RECOMMENDED that: Petitioner's motion to vacate judgment, filed May 17, 2013, (doc. no. 27), be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).