United States District Court, D. Nebraska
JOHN M. CARTER, and on behalf of other Similarly situated, Plaintiff,
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
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).
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.)
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
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.
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.
Plaintiff shall immediately send his $400.00 filing fee to
the court at the following address:
L. Hruska Federal Courthouse
South 18th Plaza