tBear v. Forman
- Jacquelyn Corley
- 3:17-cv-00796
- U.S. District Court · Northern District of California
- 4
In tBear v. Forman, Judge Corley denied Caleb Avery tBear’s Rule 60 motion, barred further motions, and held Barry Forman entitled to fees.
Caleb Avery tBear’s Rule 60 requests were denied, and he may not file additional motions in the closed case. Barry Forman was held entitled to attorneys’ fees, subject to the court’s later determination of the reasonable amount.
What happened
In tBear v. Forman, Caleb Avery tBear asked the court to reopen an earlier judgment and an order refusing to change the date of his appeal filing. The appeals court had dismissed both of his appeals as filed too late.
The court denied the request. It found that the rules cited by tBear did not provide a basis for relief: there was no clerical error, the request was too late under one provision, the rulings were not void, and no extraordinary circumstances justified reopening the judgment. The court also ordered that tBear may not file additional motions in this closed case.
Judge Jacquelyn Corley vacated the scheduled hearing and held that Barry Forman was entitled to attorneys’ fees under federal law because the motion improperly repeated issues already resolved. The court ordered Forman to submit supporting records and allowed tBear to respond.
The detailed version
- tBear v. Forman · No. 3:17-cv-00796
- Jacquelyn Corley
- Sept. 27, 2021
Background
On February 24, 2020, the court entered judgment for Barry Forman and against Caleb Avery tBear on tBear’s claims and Forman’s counterclaims. Tbear filed a notice of appeal, but the Ninth Circuit dismissed the appeal because the notice was filed too late. Tbear then asked this court for an order changing the filing date retroactively. The court denied that request, and the Ninth Circuit also dismissed tBear’s appeal from that order as untimely.
Tbear filed the present motion under Federal Rule of Civil Procedure 60, which allows a court in limited circumstances to provide relief from a judgment or order. He asked for relief from the order denying the retroactive filing-date request and from the judgment so that he could pursue an appeal.
Rule 60 ruling
The court denied the motion. It explained that Rule 60(a) applies to clerical mistakes or oversights, but tBear identified no such mistake. Rule 60(b)(3) could not provide relief from the judgment because more than a year had passed since the judgment was entered. Rule 60(b)(4) did not apply because tBear had not shown that the order or judgment was legally void.
The court also rejected tBear’s attempt to use Rule 60 to repeat the arguments previously made about the appeal deadline. It stated that the proper procedure for seeking more time to appeal was a timely motion under Federal Rule of Appellate Procedure 4(a)(5), and that Rule 60 cannot replace a timely appeal. For relief from the judgment under Rule 60(b)(6), tBear had not shown the extraordinary circumstances required to reopen a final judgment. Accordingly, the court denied all of tBear’s requests for relief under Rule 60.
Further motions and attorneys’ fees
Barry Forman asked the court to prohibit tBear from filing additional motions in the closed case. The court ordered that tBear may not file additional motions because his post-judgment motions attempted to relitigate issues that had already been decided or resolved through the untimely appeals.
Forman also requested attorneys’ fees for responding to the motion under 28 U.S.C. § 1927. The court found that tBear’s motion was recklessly frivolous because it repeated arguments concerning issues resolved by the dismissal of the untimely appeals. The court therefore held that Forman was entitled to fees under Section 1927, but directed Forman to submit records, declarations, and other supporting evidence so the court could determine the reasonable amount. Tbear was allowed to respond.
Disposition
Judge Jacquelyn Scott Corley vacated the September 30, 2021 hearing and denied tBear’s motion. The order also prohibited additional motions in the closed case, established deadlines for Forman’s fee submission and tBear’s response, and stated that the order disposed of Docket No. 288.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.