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Carter v. Muldoon

United States District Court, D. Nebraska

November 2, 2017

JOHN M. CARTER, and on behalf of other Similarly situated, Plaintiff,
v.
WILLIAM MULDOON, individually and in his official capacity as Director of NLETC, DAVE STOLZ, individually and in his official capacity as Counsel for the NLETC, NEBRASKA LAW ENFORCEMENT TRAINING CENTER, and DOES 1-25 INCLUSIVE, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         On October 5, 2017, the court entered Judgment (Filing No. 9) dismissing this case without prejudice due to Plaintiff's failure to pay the $400.00 filing fee within 30 days, as required by the court's August 30, 2017, order. (Filing No. 3.) On October 30, 2017, Plaintiff filed an Objection to Dismissal of Case and Motion to Reopen Closed Case (Filing No. 10), which I shall construe as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). This rule provides that “the court may relieve a party or its legal representative from a final judgment [or] order” due to “mistake, inadvertence, surprise, or excusable neglect” and for any “reason that justifies relief.” Fed. R. Civ. P. 60(b)(1) & (6).

The determination of excusable neglect “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The relevant circumstances include “the danger of prejudice to [the non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.”

Feeney v. AT & E, Inc., 472 F.3d 560, 562-63 (8th Cir. 2006).

         In his Motion, Plaintiff claims that he mailed the $400.00 filing fee to the same court address he used to mail his docketed pleadings, yet the payment was returned to him labeled “RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD.” (Filing No. 10 ¶ 8.) Plaintiff also accuses the Clerk of Court of refusing to grant him access to the court's electronic filing system, failing to mail summons to the defendants as he requested, and having “a personal disdain of the Plaintiff's filing and has taken action to ensure the failure of the case.” (Filing No. 10 ¶¶ 4, 5, 11.)

         Because Plaintiff's Rule 60(b) Motion was filed within a reasonable time after the judgment was entered pursuant to Fed. R. Civ. P. 60(c)(1); the apparent postal error was not within Plaintiff's control; reinstating the case will not prejudice the defendants since they have not yet been served; and because Plaintiff's case was dismissed without prejudice, which would allow him to refile this same case, I shall grant Plaintiff's Motion and reinstate this case.

         As to his accusations against the Clerk of Court, Plaintiff should note that he may receive access to the court's electronic filing system by following the procedure outlined in NEGenR 1.3(b). The Clerk of Court has no record of Plaintiff's alleged previous attempt to register for the system. Further, the summons Plaintiff previously sent to the court (Filing No. 6) were not issued because the filing fee had not yet been (and is still not) paid. Finally, the Clerk of Court treats all litigants equally, closely follows the court's detailed procedures and local rules, and offers numerous resources to pro se litigants. See United States District Court for the District of Nebraska Website, “Proceeding Without an Attorney” (containing handbooks and forms for pro se litigants). The court will not tolerate further unfounded accusations that the Clerk of Court is taking actions “to ensure the failure of” his case.

         IT IS ORDERED:

         1. Plaintiff's Objection to Dismissal of Case and Motion to Reopen Closed Case (Filing No. 10) is granted, and the Clerk of Court shall reopen this case.

         2. Plaintiff shall immediately send his $400.00 filing fee to the court at the following address:

         Roman L. Hruska Federal Courthouse

         111 South 18th Plaza

         Suite 1152

         Omaha, ...


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