Motion For Review Of 60(b) Motion

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Hiawatha Hoeft-Ross Monica Hoeft-Ross PO Box 6946 (775)544-2721 IN PRO SE UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *****

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Hiawatha Hoeft-Ross Et. Al. 7

CASE NO. CV-N-05–0121 LRH(VPC)

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Plaintiffs,

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MOTION FOR REVIEW BY THE DISTRICT COURT OF OBJECTION TO MAGISTRATES DECISION REGARDING 60(B) MOTION

10 vs. 11 Werner and Christel Hoeft, Et Al. 12 13

Defendants. _______________________________/

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COMES NOW PLAINTIFFS HIAWATHA HOEFT-ROSS et al and moves this Honorable

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Court to review the Magistrate’s order and/or judgement that was clearly erroneous and contrary to

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law on the 60(b) motion which Plaintiffs submitted to this court to set aside judgement and/or order

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of the 60(b) motion for excusable neglect predicated on multiple medical issues and the precedent

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setting case of Pioneer Investment Services v. Brunswick Associates Limited Partnership et.al. 507

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U.S. 380: 113 S.Ct. 1489; 123 L. Ed 2d 74;1993 U.S. LEXIS 2402; 61 U.S.L.W. 4263; 25 Fed

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R.Serv. 3d (Callaghan) 401; Bankr. L. Rep. (CCH) P75, 157A; 28 Collier Bankr.Cas. 2d (MB)

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267;24 Bankr Ct Dec.63; 93 Cal Daily Op Service 2096; 93 DAR 3705; 7 FLA L. Weekly Fed. S

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101. Points and authorities are included within this motion.

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This is a timely objection to the Magistrate’s ruling and therefore review is required U.S.W.

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v. New Jersey Zinc Co., 828 F.2d 1001 (3rd Cir 1987); Moores Federal Practice 72.11[1][a]. The

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final order and/or judgement came from the Magistrate on April 10th, 2007 and the plaintiffs received

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the judgement and/or order on April 11th, 2007.

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Plaintiffs would also like to have this Court take notice that this litigation is against Doctors’

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orders and plaintiffs are responding to keep their claim alive and in compliance with Due Process.

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This objection is done with the help of several persons in writing, research, copying and other misc

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items that go along with writing and objections since plaintiff Hiawatha Hoeft-Ross is under

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Doctors’ orders not to engage in court matters. Plaintiff Monica Hoeft-Ross is under a Doctor’s

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supervision and is to avoid major stressors and receives medication to ameliorate the effects of

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unavoidable stressors.

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"This circuit has had a long rule of liberal construction of pleadings presented by pro-se

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Litigants. "Abassi v. INS. 2002 WL 31103-27 (9th Cir), 305 F.3d 1028 Citing Garaux v. Pulley 739

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F2d 437 (9th Cir 1984), Balistreri v. Pacifica Police Dept 901 F.2d 696 (9th Cir 1990). Pro se

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litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical

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procedural requirements. Haines v. Kerner, 404 U.S. 519 (1972), in which the U.S. Supreme Court

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noted that pleadings drafted by pro-se litigants should be held to a less stringent standard than formal

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pleadings drafted by lawyers.

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FACTS

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Plaintiff Hiawatha Hoeft-Ross has been on disability due to multiple symptomology due to

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a closed head injury for about fifteen(15) years. These have included many diagnosis such as

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schizophrenia, fibromyalgia, vertigo, cervical nerve degeneration among others. A list is available

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in the exhibits of the 60(b) motion. Plaintiff Monica Hoeft-Ross has been diagnosed with severe

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depression, Bipolar Disorder and PTSD for the last 6 years. The other plaintiffs are our children who

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rely upon Hiawatha Hoeft-Ross to act as their counsel. At the onset of this litigation the physicians

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attending Hiawatha Hoeft-Ross had reviewed his medical status and advised him that he was

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stabilized enough to enter into this type of litigation. Since the onset of the litigation, there was an

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exacerbation of his medical problems occurring during this litigation process and Hiawatha Hoeft-

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Ross is still under observation for his various ailments by local physicians.

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Unfortunately Hiawatha Hoeft-Ross was involved in an automobile accident on October 12th,

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2006. As a result of this accident, Mr. Hoeft-Ross sustained injuries that substantially exacerbated -2-

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his existing condition. Attending physicians found it necessary to involve various medical specialists

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in their attempt to again stabilize Mr. Hoeft-Ross’ medical condition. Hiawatha Hoeft-Ross advised

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defendants’ counsel Michael Kealy and the Court of this accident and the resulting ongoing medical

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treatments on a regular basis. Mr Hoeft-Ross was ordered by his primary physician Dr. John N.

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Chappel not to engage in any legal matters due to the potential exacerbation of his injuries and the

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possibility of future heart attacks until his medical situation was sufficiently stabilized.

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On the 18th of January, 2007, Mr Hiawatha Hoeft-Ross and his wife Mrs. Hoeft-Ross

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(plaintiffs) did not appear based on orders issued by John N. Chappel M.D. in a notice written to the

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Honorable Valerie P. Cooke on November the 1st, 2006, that Plaintiff Hiawatha Hoeft-Ross had

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forgotten to submit due to his ongoing memory problems ( exhibit 10A and 10B of the 60(b)

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motion). Additionally, Mr. Michael Kealy counsel for the defendants was advised of Mr. Hiawatha

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Hoeft-Ross’ medical condition. He was advised by mail on three separate occasions during the

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months of November and December 2006 that Mr. Hoeft-Ross could not engage in any legal

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decisions. Mr Kealy apparently did not believe Mr. Hoeft-Ross’ letters and stated he would be filing

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a summary judgement request with the District Court immediately. Based on Mr. Kealy’s written

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statements, Mr. Hoeft-Ross believed the hearing scheduled for the 18th of January 2007 had been

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vacated since the Summary Judgement would preempt that hearing.

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Plaintiffs did not know until they received the minutes of the court that there had been a

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hearing on the 18th of January 2007, abrogating Plaintiffs substantial Due Process rights, which

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Plaintiffs found to be a punishment in excess of the alleged wrongs committed. As soon as Plaintiffs

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received these minutes, they promptly set up a 60(b) motion that took over 3 weeks to complete with

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substantial assistance (declaration attached to 60(b) motion). The Court had stated that since

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Plaintiffs were able to file a 16 page motion which included 109 exhibits, that plaintiffs were able

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to litigate and did not do so at their own peril (see Minutes of the Court April 10th, 2007). The court

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gave the Plaintiffs no other option. Plaintiffs were merely attempting to preserve their rights despite

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physicians orders to the contrary regarding litigation. Apparently the magistrate did not either

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believe or read the attached declaration.

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As of the date of this document, Mr. Hiawatha Hoeft-Ross continues to have severe problems

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as evidenced by attachments “A” and “B” which are copies of a referral to a neurological specialist

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who has scheduled additional procedures. Further decisions cannot be made by the specialist until

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the results have been reviewed. Additionally Mr. Hoeft-Ross has been excused from Jury Duty due

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to his vertigo and newly discovered sleep disorder as well.

ARGUMENT

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A district judge reviewing a magistrates judge’s order on a non-dispositive matter must

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modify or set aside any portion of that order that is clearly erroneous or contrary to law. Fed.R.Civ.P.

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72(a); Weeks Stevedoring Co., v. Raymond Int’l Builders Inc., 174 F.R.D. 301, 303 (S.D.N.Y. 1991)

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(district court may reverse magistrate judge’s decision on non-dispositive matter only if found to be

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contrary to law).

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Rule 60(b) is meant to be remedial in nature and therefore must be liberally applied. See

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Butner v. Neustadter, 324F.2d 783 (9th Cir 1963). Second, judgement by default is a drastic step

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appropriate only in extreme circumstances; a case should , whenever possible, be decided on the

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merits. See Schwab v. Bullock's Inc., 508 F.2d 353 (9th Cir 1974). More specifically, in applying

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the general terms of Rule 60(b) to default judgements, this court has emphasized that such

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judgements are "appropriate only in extreme circumstances; a case should, whenever possible, be

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decided on the merits.”

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The facts above indicate that the court did not liberally apply the 60(b) motion but rather

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treated the matter as a judgement by default in that the court deprived the plaintiffs of all due process

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rights and did not attempt to decide the case on the merits. Furthermore, the court stated the

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plaintiffs were still liable for contempt of court sanctions which are not defined. This is clearly an

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attempt to chill any further actions by the plaintiffs to regain the denied due process rights. In a

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previous case the Magistrate Judge Valerie P. Cooke admonished Hiawatha Hoeft-Ross that he better

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not file anymore lawsuits.

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In light of due process concerns raised by the conclusive foreclosure of legal rights, the

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district court may not enter a judgment of dismissal or default as a sanction without finding "willful"

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noncompliance or bad faith, which in this context means a voluntary, intentional refusal to comply -4-

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with a discovery order. See Gocolay v. New Mexico Fed. Sav. & Loan Ass'n , 968 F.2d 1017,

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1020-21 (10th Cir. 1992); M.E.N. Co. v. Control Fluidics, Inc. , 834 F.2d 869, 872-73 (10th Cir.

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1987). We review such a sanction generally for abuse of discretion, see Gocolay , 968 F.2d at 1020.

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It would appear that the court did not review the declaration attached to the 60(b) motion

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which clearly states that the motion was prepared with the assistance of other individuals and

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required over three weeks to prepare. To support such a severe set of sanctions without a hearing

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to determine bad faith, willful non-compliance or some other set of facts showing unwillingness to

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participate in discovery, is manifest injustice. It fails to comply with what established case law has

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determined to be essential for the actions taken.

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" We recognize that a somewhat delicate balance exists between the necessity for a trial judge to

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exercise control and management over his/her courtroom and docket and the litigants' substantial

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rights which may result which may from time to time suffer as a result of this acknowledged need

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" We conclude therefore that the sanction of default was too harsh and that the default judgement

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should be vacated. Vac-Air v. Mohr 471 F.2d 231(7th Cir 1973).

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After receiving evidence and hearing testimony, the magistrate recommended finding against the respondent, and the district court accepted the recommendation without conducting its own evidentiary hearing. U.S. v. Raddatz No 79-8 Supreme Court of the United States 447 U.S. 667; 100 S. Ct. 2406;65 L. Ed. 2d 424; 1980 U.S. LEXIS 49.

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The magistrate never took any testimony or conducted a hearing before making her findings.

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She predicated her entire findings that “plaintiffs were able to participate in discovery and chose not

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to do so” based on the fact that plaintiffs submitted the 60(b) motion. In so doing she ignored

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multiple declarations by attending physicians that Plaintiff Hiawatha Hoeft-Ross was unable to

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participate in court matters. All declarations were made under penalty of perjury and signed by a

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prominent local physician.

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RULES AND GOALS OF A 60(B) MOTION

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Rule 60(b)(1) guides the balance between the overriding judicial goal of deciding issues

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correctly, on the basis of their legal and factual merits with the interests of both litigants and the

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courts in the finality of judgements. The factors that govern the lifting of entries of default under -5-

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Fed.R.Civ.P. 55(c) are: whether the defendant’s [plaintiffs’] culpable conduct led to the default;

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whether the defendant [plaintiffs have] has a meritorious defense; and whether reopening the default

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judgement would prejudice the plaintiff [defendant].

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Excusable neglect is a general equitable concept , not necessarily reserved for extraordinary

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circumstances, and takes into account of factors such as prejudice, the length of the delay and impact

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on judicial proceedings, the reason for the delay, including whether it was in the reasonable control

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of the movant, and whether the movant acted in good faith. A showing of lack of culpability

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sufficient to meet the Fed.R.Civ.P. 55(c) good cause standard is ordinarily sufficient to demonstrate

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as well as the excusable neglect or mistake criteria under Fed.R.Civ.P. 60(b)(1), and there is

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therefore no reason to require that those Rule 60(b)(1) Criteria be established separately. That is,

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if a defendant’s [plaintiff’s] conduct was not culpable , then her [his] failure to respond to a lawsuit

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is ordinarily excusable, and in the interests of substantial justice the better course may well be to

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vacate the default judgement and decided the case on the merits. A defendants [plaintiffs] or his or

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hers counsel’s physical or mental illness is a common ground for finding conduct non-culpable when

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considering to lift a default judgement or overturn the failure to lift a default judgement. A

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defendant [plaintiff] seeking to vacate a default judgement must present specific facts that would

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constitute a meritorious defense, but the burden on a party seeking to vacate a default judgement in

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not extraordinarily heavy.

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To be prejudicial , the setting aside of a judgement must result in greater harm than simply

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delaying resolution of the case. Rather, the standard is whether the plaintiff’s [defendants’] ability

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to pursue his claim will be hindered. To be considered prejudicial, the result must result in tangible

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harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud

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or collusion.

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Motions to vacate a default judgement... are cognizable under Fed.R.Civ.P. 60(b) .Rule

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60(b)(1), the subsection here pertinent, grants District Courts discretion to relieve a party from a

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judgement or order for reasons of “mistake, inadvertence, surprise, or excusable neglect.”As such,

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Rule 60(b)(1) guides the balance between the overriding judicial goal of deciding cases correctly,

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on the basis of their legal and factual merits, with the interest of both litigants and the courts in the -6-

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finality of judgements. Pena v. Seguras La Comercial, 770F.2d 811,814 (9th Cir 1985).The Supreme

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Court has made it clear, that a 60(b)motion in the context of excusable neglect is an equitable one,

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not necessarily reserved for extraordinary circumstances, and take into account of factors such as

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prejudice, the length of the delay and impact on judicial proceedings, the reason for the delay,

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including whether it was within the reasonable control of the movant, and whether the movant acted

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in good faith. Pioneer Investment Services v. Brunswick Associates Limited Partnership et.al. 507

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U.S. 380 supra.; see Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir 1997) (holding

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that the Pioneer Investment “excusable neglect” standard applies to Rule 60(b)(1). Pioneer

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Investment made it clear that the word neglect encompasses simple faultless omissions to act and

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more commonly omissions caused by carelessness [507 U.S. at 388]. In the first category, for

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example, are situations where a party may choose to miss a deadline although for a very good reason,

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such as to render first aid to an accident victim discovered on the way to the courthouse. Such an

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omission is “intentional” in the usual sense of that term ; that is, it is the result of a conscious choice.

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Nonetheless, it is “neglect”-- that is, “ giving little attention or respect” to the filing deadline in light

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of other considerations, id.–and the question becomes whether that “neglect” is “excusable,” a

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question answered, as we have noted in and as Pioneer Investment spells out, by considering a bevy

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of equitable considerations. To suppose that the making of a conscious choice, without more,

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precludes a finding that “neglect” cannot be squared with Pioneer Investment. TCI Group Life

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Insurance Plan v. Knoebber ,244F.3d 691 (9th Cir 2001). Plaintiff Hiawatha Hoeft-Ross was ill and

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under Doctors orders not engage in legal matters and his conduct was wholly non-culpable and

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without willful noncompliance or bad faith. Plaintiff Monica Hoeft-Ross was also under severe

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stress due to the litigation and not mentally able to attend a hearing on her own.

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REQUEST FOR JUDICIAL NOTICE

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Plaintiff hereby requests this honorable Court to take Judicial notice pursuant to Fed.R.Evid.

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201 regarding Ross v. Montgomery Case No. CV-N-02-0160-HDM-VPC of the medical report

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therein that is of public record and a foundation for the ongoing medical conditions of Plaintiff

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Hiawatha Hoeft-Ross in this matter. Valerie P. Cooke in her own capacity as Magistrate Judge read

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the report and allowed it to be entered into evidence.

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CONCLUSION

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The magistrate judge clearly erred by not affording procedural due process when imposing

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sanctions on [Simonici], who was not given notice that he might lose representation over his refusal

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to file an ordered affidavit, and was not given an opportunity to present argument. Ninth Circuit law

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does not permit a summary disqualification of counsel; for the court to sanction an attorney,

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procedural due process requires notice and an opportunity to be heard. See Pac. Harbor Capital, Inc.,

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v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir 2000)(“[A]n attorney subject to discipline

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is entitled to procedural due process, including notice and an opportunity to be heard.”)( quoting

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Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1198 (9th Cir 1999)): see also Martens v. Thomann,

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273 F.3d 159,175 (2nd Cir 2001)(“We have held that due process requires that the courts provide

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notice and an opportunity to be heard before imposing any kind of sanctions.) [W]henever the district

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court imposes sanctions on an attorney, it must at a minimum afford the attorney notice and an

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opportunity to be heard. In the instant case, the district court did not give [Shonbrun] notice or an

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opportunity to be heard prior to sanctioning him. Therefore the district court abused its discretion

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in imposing the sanction Weissman v. Quail Lodge Inc supra. As cited in Cole v. United States

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District Court For the District of Idaho 366 F.3d 813; 04 Cal. Daily Op. Serv. 3806. (9th Cir 2004)

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Plaintiffs as pro-ses are viewed as counsel held to a less stringent standard but are expected

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to know the rules of the court as any counsel in the bar. Plaintiffs were denied notice and a hearing

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for their non-compliance which in the Ninth Circuit is a denial of due process and is against the

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rules.

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As a general rule, if a petitioner does not seek reconsideration of a magistrate judge’s non-

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dispositive order with the district court, when such review is available, the factor that looks at

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whether the party seeking the relief has no other means of relief will not be affirmatively presented,

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thus weighing heavily against granting a writ, but this general rule may give way to an exception if

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the petitioner can convincingly demonstrate that reconsideration by the district court would have

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been futile. 28 U.S.C.A.§ 636 (b)(1)(A).

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28 U.S.C.A.§ 636 (b)(1)(A). Provides:

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[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before

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the court, except a motion for injunctive relief, for judgement on the pleadings, for summary

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judgement, to dismiss or quash and indictment or information made by the defendant, to suppress

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evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for

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failure to state a claim upon which relief can be granted, and to involuntary dismiss an action. A

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judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been

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shown that the magistrate judge’s order is clearly erroneous or contrary to law.

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The Magistrate judge made a sua sponte judgement on the motion before her for a 60(b) set

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aside without examining prevailing Supreme Court statutes and Ninth Circuit Case law. In the

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ordinary course, the district courts , and not the courts of appeals, are to be called on, in the first

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instance, to correct any clear error in the decision of a magistrate judge on non-dispositive matters,

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for this is the role that congress has created for the district courts. Cole v. United States District

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Court For the District of Idaho 366 F.3d 813 (9th Cir 2004) supra. In 28 U.S.C.A.§ 636 (b)(1)(A),

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Congress provided that a district court judge can designate a magistrate to hear and determine any

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pretrial matter pending before the court , except certain dispositive motions. The sua sponte denial

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of plaintiffs’ due process rights and the gutting of their case was 1) too harsh of a sanction for the

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motion and supporting evidence submitted and 2) The magistrate judge did a dispositive motion on

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the lack of discovery by the Plaintiffs without notice of hearing or due process as is required. Review

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by the district court of the magistrates determination of these non-dispositive motions is on a clearly

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erroneous standard.. U.S. v. Raddatz, No 79-8, Supreme Court of the United States, 447 U.S. 667,

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supra. Under the statute -- which calls for a “de novo determination”, not a de novo hearing -- the

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district court was not required to rehear the testimony on which the magistrate based her findings and

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recommendations in order to make an independent evaluation of credibility. The Magistrate Judge

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did not conduct any hearings on the motion, and Plaintiffs respectfully request a hearing on the 60(b)

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motion with witnesses. -9-

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The legislative history discloses that Congress purposely used the word determination rather

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than hearing, believing that Art. III was satisfied if the ultimate adjudicatory determination was

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reserved to the Art III officer, and that Congress intended to permit whatever reliance the judge , in

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the exercise of sound judicial discretion, chose to place on the magistrates proposed findings and

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recommendations. U.S. v. Raddatz, No 79-8, Supreme Court of the United States, 447 U.S. 667,

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supra. See also North American Watch Corp., v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th

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Cir 1986) Citing U.S. v. Raddatz, No 79-8, Supreme Court of the United States, 447 U.S. 667,

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supra. See also Moores Federal Practice 72.11 [1][b].

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WHEREFORE Plaintiffs pray for the following relief;

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1)

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That the District Court find the Magistrate’s ruling on the 60(b) motion clearly erroneous and contrary to law;

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2)

That the District Court finds that the Magistrate misinterpreted or misapplied the law;

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3)

That the findings of Scheduling Conference be altered to reflect the following:

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A. that the sanctions against Plaintiffs be set aside,

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B. that discovery be granted to Plaintiffs,

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C. that Plaintiffs do not waive any right to extensions or revisions pursuant

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to

LR26-1 and Fed.R.Civ.P. 26 and;

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D. that the deadlines contained in the order will be invalidated.

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4)

That judicial notice be reinstated;

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5)

That the Plaintiffs be heard before this honorable court with witnesses which were

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denied by the Magistrate judge when she made her findings; 6)

Whatever else the Court may deem appropriate.

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Respectfully submitted Dated:____________

26 __________________________ 27 Hiawatha Hoeft-Ross 28 - 10 -

1 __________________________ 2 Monica Hoeft-Ross 3

PROOF OF SERVICE BY MAIL

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Pursuant to FRCP 5(b), I certify that, I Monica Hoeft-Ross, on April______ , 2007, I deposited in

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the U.S. Mail at Reno, Nevada, in a sealed envelope, a MOTION FOR REVIEW BY THE

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DISTRICT COURT OF OBJECTION TO MAGISTRATES DECISION REGARDING 60(B)

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MOTION and Points and Authorities in support of motion included therein and the declaration in

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support motion of Hiawatha Hoeft-Ross, and attachments; a true and correct copy postage prepaid

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thereon, addressed to:

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Michael Kealy 50 West Liberty Street Suite 750 Reno, NV 89501

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_____________________________ Monica Hoeft-Ross

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