Motion To Set Aside Judgement Pursuant To Frcp 60(b)

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Hiawatha Hoeft-Ross Monica Hoeft-Ross PO Box 6946 (775) 544-2721 In Pro Se

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *****

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Hiawatha Hoeft-Ross Et. Al. CASE NO. CV-N-05–0121 LRH(VPC)

10 Plaintiffs, 11 12

60(B) MOTION vs.

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Werner and Christel Hoeft, Et Al.

SANCTIONS AGAINST OPPOSING COUNSEL PURSUANT TO 60(B)(3) AND THE ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY

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Defendants. _______________________________/

MOTION TO EXTEND TIME OF DISCOVERY

15 REQUEST FOR JUDICIAL NOTICE 16 17 18 19 20

COMES NOW PLAINTIFF HIAWATHA HOEFT-ROSS and asks this Honorable Court to

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set aside the order of January 18, 2007, on the grounds of Excusable Neglect, Illness of Party, and

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Sanctions against opposing counsel Michael Kealy for not being candid with this tribunal. The court

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has not been apprized of the additional injuries suffered by Mr. Hoeft-Ross although Mr. Kealy,

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counsel for the defendants, has been kept in regular contact as to the situation through

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correspondence from Plaintiff Hiawatha Hoeft-Ross. Mr. Kealy only presented evidence of

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correspondence up to September 8th, 2006 when there was actually correspondence up to January of

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2007. Declaration of Hiawatha Hoeft-Ross in Support of Motions attached hereto.

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FACTS

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Plaintiffs submitted a discovery plan on July 27th, 2006, and sent a copy to Mr. Kealy by certified

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mail (see exhibits "1- 1G" ). The Plaintiffs did not submit a Discovery Plan within the 30 days

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because it was Plaintiff's history with this court that the represented party be the first one to draft

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such documents. Plaintiffs wrote two letters to Mr. Kealy regarding the meet and confer and an

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agenda regarding the meet and confer. The August 23rd letter proposes a date for a meet and confer

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and advises counsel that Plaintiff Hiawatha Hoeft-Ross is very ill (see exhibit "2") The August 24th

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letter addresses the Agenda (see exhibit "3 and 3A"). The discovery plan of the defendants on

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September 8th, 2006 was submitted to the court by Mr. Kealy at the same time he sent a copy to the

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plaintiffs. This plan was completely non-compliant with the order of the court by being way outside

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the time frame of the 30-day disclosure requirement of the Local Rules. The differences have yet to

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be reconciled. Mr. Kealy submitted his Proposed plans and witness list on the 8th day of September

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(see exhibit"4") without advising plaintiffs either orally or in writing, thus forestalling any meeting

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of the minds. On September 8th, 2006, Plaintiff Hiawatha Hoeft-Ross received a note from his

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specialist regarding his medical and mental health status, that he was not to partake in a legal

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conference (see exhibit"5"). Plaintiff Hiawatha Hoeft-Ross had an appointment with Dr. Steve

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Berman of Sierra Pain Consultants on September 22nd , 2006 for his medical conditions (see exhibit

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"6" and "6A" "6 B") for two surgical procedures namely a "Cervical facet" and a "Cervical Epidural

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Steroid Infiltration." Plaintiff Hiawatha Hoeft-Ross moved for and Extension of Time, due to his

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severe pain and was seen in the hospital for it (see exhibit "7 - 7C"). Plaintiff Hiawatha Hoeft-Ross

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submitted to the DMV from his specialist that he was in a hit and run accident on October 12th 2006

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in order for him to get the records of the accident (see exhibit "8") See exhibit"9" police report of

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hit and run accident on October 12th 2006, and was seen in the emergency room for his injuries and

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was referred to a specialist. This Accident exacerbated Plaintiff Hiawatha Hoeft-Ross' existing

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injuries and/or created new ones. On November 1st 2006 Plaintiff Hiawatha Hoeft-Ross saw his

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specialist and said specialist prepared a letter for the court (see exhibit "10" and "10A")

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Unfortunately when Plaintiff thought he had sent this document to the Court an opposing counsel,

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but it subsequently was discovered in his "files"while preparing this motion. In a write-up on -2-

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November 13th 2006, by Dr. Berman, the surgical procedures that Plaintiff Hiawatha Hoeft-Ross

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underwent were not effective at alleviating his pain or stabilizing his condition (see exhibit

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"11").Plaintiff advised counsel on November 21st 2006 of this (see exhibit "12" through "12D") and

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asked to stipulate to an indefinite continuance, but did not receive an answer by November 27th 2006

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(see exhibit "13-13D"). Plaintiff then received a letter from counsel stating that they would not

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stipulate to an indefinite continuance, but seek out a summary judgement (see exhibit "14"). Plaintiff

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wrote back to Mr. Kealy, Defendants' counsel and stated that he regretted that a stipulation cannot

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be reached without court intervention ( see Exhibits "15-15C") plaintiff Monica Hoeft-Ross wrote

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Mr. Kealy on January 3rd 2007, stating that Hiawatha Hoeft-Ross' condition had not stabilized and

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was awaiting their summary judgement (see exhibit "16-16C"). Plaintiffs received a response from

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Mr. Kealy on January 10th 2007, confused about the awaiting of a summary judgement and

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discussing a resolution. As stated before, Plaintiff Hiawatha Hoeft-Ross was in no condition to

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discuss any such resolution as he was not mentally capable of resolving legal matters (see exhibit

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"17").

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Dr. John N. Chappel wrote a declaration in that Plaintiff Hiawatha Hoeft-Ross has not been able to

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function well enough to attend court (see exhibit "18"). Plaintiff Hiawatha Hoeft-Ross has had

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another appointment with Reno Diagnostics for diagnostic medical examinations to be performed

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due to his non-responsiveness to previous medical procedures (see exhibit "19").

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ARGUMENT

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60 (b)Motion

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Grounds For a 60(b) Motion:

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Rule 60. Relief from Judgment or Order

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(a) Clerical Mistakes.

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Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from

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oversight or omission may be corrected by the court at any time of its own initiative or on the motion

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of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such

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mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter -3-

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while the appeal is pending may be so corrected with leave of the appellate court.

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(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.

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On motion and upon such terms as are just, the court may relieve a party or a party's legal

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representative from a final judgment, order, or proceeding for the following reasons: (1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence

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could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether

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heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse

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party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior

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judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable

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that the judgment should have prospective application; or (6) any other reason justifying relief from

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the operation of the judgment. The motion shall be made within a reasonable time, and for reasons

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(1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

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A motion under this subdivision (b) does not affect the finality of a judgment or suspend its

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operation. This rule does not limit the power of a court to entertain an independent action to relieve

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a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally

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notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court.

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Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill

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of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by

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motion as prescribed in these rules or by an independent action.

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Rule 60(b) is meant to be remedial in nature and therefore must be liberally applied See Butner v. Neustadter, 324F.2d 783 (9th Cir 1963). Second, judgement by default is a drastic step appropriate only in extreme circumstances; a case should , whenever possible, be decided on the merits. See Schwab v. Bullock's Inc., 508 F.2d 353 (9th Cir 1974). More specifically, in applying the general terms of Rule 60(b) to default judgements, this court has emphasized that such judgements are "appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits. Falk v. Allen 739 F.2d 461 (9th Cir 1984).The district Court denied [her] motion to set aside default judgement based on excusable neglect, because [she] was grieving and moving her residence at the time. Default judgement was reversed and remanded. TCI Group Life Insurance Co., v. Knoebber 244F.3d 691 (9th Cir 2001).

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" We recognize that a somewhat delicate balance exists between the necessity for a trial judge to exercise control and management over his/her courtroom and -4-

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docket and the litigants' substantial rights which may result which may from time to time suffer as a result of this acknowledged need " We conclude therefore that the sanction of default was too harsh and that the default judgement should be vacated. Vac-Air v. Mohr 471 F.@d 231(7th Cir 1973).

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A party may obtain through full vacation of the [prior] judgement or by partial vacation or modification of that Judgement In re Whitman 690 N.E.2d 535 Civ.R. 60(b) is remedial and should be liberally construed so the ends of justice may be served Kay v. Marc Glassman Inc., (1996), 76 Ohio St.3d 18, 665 N.E.2d 1102. As cited in Banfield v. Brodell 2006 Ohio 5267. The determination of whether a particular failure is excusable neglect “must be made from all the individual facts and circumstances in each case.” D.G.M. Inc., v. Creamans Concrete & Supply co., Inc., (1996) 111 Ohio App.3d 134, 675 N.E.2d 1263.As cited in Banfield v. Brodell 2006 Ohio 5267.

9 Plaintiff contends that the reason for not appearing at the January 18th 2007 conference was that of 10 excusable neglect, in that Plaintiff Hiawatha Hoeft-Ross has a severe brain impairment/dysfunction 11 due to a closed head injury, he often forgets appointments and/or mixes up dates.

This

12 impairment/dysfunction is beyond his control. At the time Plaintiff Hiawatha Hoeft-Ross began this 13 action, he discussed the matter with his specialist and was advised that he was sufficiently stabilized 14 to be able to properly participate in litigation. However, the hit and run accident in October of 2006 15 apparently caused either a new injury or an exacerbation of the existing injuries. And destabilized 16 his ability to function in a legal situation and he has been advised that he should not make any legal 17 decisions and has been advised that he "has not been able to function well enough to attend court."It 18 is for these reasons that Plaintiff Hiawatha Hoeft-Ross has not attempted to make any legal decisions 19 or to participate in any court function. Clearly the automobile accident in October of 2006 was not 20 due to any negligent and/or intentional act of Plaintiff. Thus the injuries which are not stabilized are 21 beyond the control of Plaintiff and constitutes excusable neglect. 22 23 24 25

"Because the Five-year statute of is designed to prevent avoidable delay, an exception to the statute is recognized where, due to the circumstances beyond the plaintiffs control, moving the case [to trial] is impracticable for all practical purposes (§ 583.340(c): see Hughes v. Kimble (1992) 5 Cal.App.4th 59, 6 Cal.Rptr. 2d 616. Emphasis added.

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...Bankruptcy Court to find excusable neglect [is] if the movant is prevented from complying with the deadline by an act of God or some other circumstance beyond the movant's control. Pioneer Investment Services Company v. Brunswick -5-

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Associates Limited Partnership et.al. 507 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 R.Serv. 3d (Callaghan) 401; Bankr. L. Rep. (CCH) P75, 157A; 28 Collier Bankr.Cas. 2d (MB) 267;24 Bankr Ct Dec.63; 93 Cal Daily Op Service 2096; 93 DAR 3705; 7 FLA L. Weekly Fed. S 101 In Re Pioneer 507 U.S. 380, 113 S.Ct. 1489, 123 L. ED2d 74(1993) (finding that attorneys inadvertence failure to file proof of claim within the court's deadline constitutes excusable neglect, and for an attorney's dire medical conditions , see Thomas Murkerson 2005 WL 3591958 (M.D. Ga. December 30, 2005)(counsel's failure to meet filing deadline due to medical condition and subsequent convalescence constituted "excusable neglect")

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“...Plaintiff’s counsel also attached, in camera, a detailed summary of his medical problems. It appears that the best characterization of counsel’s failure to appear is excusable neglect as opposed to any willful or bad faith conduct. This would not support a sanction of dismissal.” Sampson Fire Sales v. Oaks 201 F.R.D. 351 In Lambert v. Jo An Barnhart 2006 WL 832516 (N.D. Tex) FN2: A one half page letter from counsel’s physician describing his medical condition and the course of his treatment has been tendered to the court In Camera. Plaintiff’s motion is subject to the “excusable neglect” standard of Fed.R.Civ.P. 6(b) [sic] that rule provides in, in relevant part” When by these rules or by a notice given thereunder or by order of the court an act is required to be done at or within a specific period of time, the court for cause shown may at any time in its discretion, upon motion made after the expiration of the specific period permit to be done where the failure to act was the result of excusable neglect.... Fed.R.Civ.P. 6(b) [sic] (emphasis added) . The determination of what constitutes “excusable neglect” is an equitable one. See Pioneer 507 U.S. 380, 113 S.Ct. 1489, 123 L. ED2d 74(1993)

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The bankruptcy court's finding did not consider the impact of the recent trauma of the spouse's illness upon the attorney's ability to focus upon this appeal, nor did that court's finding take into account the reality that the order appealed from was entered on a Friday. Although we do not know when the attorney received that order, acknowledging the time required for receipt of the order by mail, he had less than ten days to focus upon the order and the need for appeal. In the context of the equitable decision on the attorney's motion for an extension, the extraordinary circumstances presented in this case and the absence of factors supporting denial of the motion required that this motion be granted. We recognize that it appears harsh, in the words of the Waterman opinion, to address the bankruptcy court's decision as unreasonable. We are, however, left with a "definite and firm conviction that the [bankruptcy court] committed a clear errorofjudgment."InreM.J.Waterman&Assocs.,Inc.,2000FEDApp.0324P Becausethebankruptcycourtfailedtodistinguishtheparticularfactsof this case from neglect due to "law office upheaval," we find that the bankruptcy court abused its discretion in denying the Debtor's motion for an extension of the time to appeal based on excusable neglect.

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A party seeking to set aside a default judgement under T.R. 60(b)(1) must demonstrate that the judgement entered was as a result of mistake, surprise or excusable neglect. The trial court’s discretion in this area is necessarily broad because any determination of mistake surprise or excusable neglect must turn on -6-

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the particular facts and circumstances of each case. Kmart Corp., v. Englebright 719 N.E.2d at 1253.

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In light of due process concerns raised by the conclusive foreclosure of legal rights, the district court may not enter a judgment of dismissal or default as a sanction without finding "willful" noncompliance or bad faith, which in this context means a voluntary, intentional refusal to comply with a discovery order. See Gocolay v. New Mexico Fed. Sav. & Loan Ass'n , 968 F.2d 1017, 1020-21 (10th Cir. 1992); M.E.N. Co. v. Control Fluidics, Inc. , 834 F.2d 869, 872-73 (10th Cir. 1987). We review such a sanction generally for abuse of discretion, see Gocolay , 968 F.2d at 1020, but we assess any supporting factual findings under the clear error standard, see Olcott v. Delaware Flood Co. , 76 F.3d 1538, 1557 (10th Cir. 1996). Thus, while we gauge the appropriateness of the sanction by reference to the totality of the surrounding circumstances, see id. , we must first determine that sufficient evidence establishes the specific instance(s) of willful noncompliance on which the sanction is based, compare Toma v. City of Weatherford , 846 F.2d 58, 60-61 (10th Cir. 1988) (reversing dismissal where record did not support finding that sanctioned noncompliance was willful) with Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992) (affirming dismissal where finding of willful misconduct was "not clearly erroneous"). Defendant contends that the district court never made the requisite finding of willful noncompliance and, moreover, that the record is insufficient to support such a finding in any event. Both of these contentions have merit. Absent a finding of willfulness to support dismissal or default, "reversal is required." Gocolay , 968 F.2d at 1021. Furthermore, the scant evidentiary record regarding defendant's medical condition would not warrant a finding that his failure to appear for the ordered deposition was willful. Documentation from his treating physicians in Indonesia, though short on specifics, showed that he had been hospitalized at least three times during the previous year and a half, twice in very close proximity to the pertinent time-frame (once in mid-July and once in mid-September 1996). See App. II at 473-75, 513. It also indicated that in between the latter hospitalizations defendant remained under "treatment/medication" and "in need of total rest." Id. at 549. The situation depicted in these materials certainly does not reflect willful noncompliance in connection with defendant's failure to travel halfway round the globe for his deposition. Cf. Gocolay , 968 F.2d at 1021 (reversing dismissal and citing similar medical evidence which "suggest[ed] [the sanctioned party] did not fabricate his health claims to avoid [his] deposition"). Myles v. Sapta 139 F.3d 912 (10th Cir 1997) Excusable neglect is a general equitable concept, not necessarily reserved for extraordinary circumstances, and takes account of factors such as prejudice, the length of the delay and 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. parties. Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam).

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A defendant's or her counsel's physical or mental illness is a common ground for finding conduct non-culpable when considering whether to lift a [default] judgment or overturn the failure to lift a [default] judgment. TCI Group Life Insurance Plan v. Knoebber supra. The court of appeals has admonished that, as a general matter Rule 60(b) is remedial in nature and . . . must be liberally applied TCI Group Life Insurance Plan v. Knoebber supra. -7-

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A defendant's or her counsel's physical or mental illness is a common ground for finding conduct non-culpable when considering whether to lift a default judgment or overturn the failure to lift a default judgment. To be prejudicial, the setting aside of a judgment must result in greater harm than simply delaying resolution of the case. Rather, the standard is whether plaintiff's ability to pursue his claim will be hindered. To be considered prejudicial, the delay must result in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion. The defendant's or counsel's physical or mental illness is a common ground for finding conduct non-culpable when considering whether to lift a [default] judgment or overturn the failure to lift a [default] judgment. See, e.g., Leshore v. County of Worcester, 945 F.2d 471 (1st Cir. 1991); Vac-Air, Inc. v. John Mohr & Sons, Inc., 471 F.2d 231 (7th Cir. 1973); Rooks v. American Brass Co., 263 F.2d 166 (6th Cir. 1959) (per curiam); Tri-Continental Leasing Corp. v. Zimmerman, 485 F. Supp. 495, 497 (N.D. Cal. 1980). TCI Group Life Insurance Plan, L v. Knoebber, 244 F.3d 691; 2001 U.S. App. LEXIS 8583; 49 Fed. R. Serv. 3d (Callaghan) 140; 2001 Cal. Daily Op. Service 2376; 2001 [T]he court said: "No reason is apparent why excusable mistakes should not be remedied on behalf of successful litigants as in case of those not successful. The object to be attained is to do complete justice to all the parties. The right to remedy mistakes is an inherent power with courts and this power extends to all parties to actions." Dedrick v. Charrier (1906) 15 ND 515, 108 NW 38, 125 Am St Rep 608, 40 ALR 1127 "To be entitled to relief from a judgment in his favor, a party must in some way be prejudiced by the judgment", 40 ALR 1127.

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...and the parties' neglect must be excusable. Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74, 24 Bankr. Ct. Dec. (CRR) 63, 28 Collier Bankr. Cas. 2d (MB) 267, Bankr L. Rep. (CCH) P 75157A, 25 Fed. R. Serv. 3d 401 (1993). Pioneer sets forth an equitable "framework"for determining the question of excusable neglect in particular cases, and the United States Court of Appeals for the Ninth Circuit will ordinarily examine all of the circumstances involved rather than holding that any single circumstance in isolation compels a particular result regardless of other factors. "The determination of whether neglect is excusable is an equitable one that depends on at least four factors: 1) the danger of prejudice to the other side; 2) the gravity of the neglect and its potential impact on the proceedings; 3) the reason for the neglect ; and 4) whether the movant acted in good faith." Bateman v. United States Postal Serv., 231 F.3d 1220 (9th cir 2000) citing Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74, 24 Bankr. Ct. Dec. (CRR) 63, 28 Collier Bankr. Cas. 2d (MB) 267, Bankr L. Rep. (CCH) P 75157A, 25 Fed. R. Serv. 3d 401 (1993), Barry vs. Lindner, 75 P.3d 388; 2003 Nev. LEXIS 50

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Movant hereby moves this Court in good faith. Plaintiff has medical reasons that go beyond his

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control. He gets forgetful and easily confused in high pressure situations as explained by Dr. John

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N. Chappel. A valid excuse are ones of medical reasons. It doesn't even have to go as far as being

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medical. One case held that a movant could set aside judgement based on excusable neglect because

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she was grieving and moving her residence at the time TCI Group Life Insurance Plan, L v.

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Knoebber, 244 F.3d 691; 2001 U.S. App. LEXIS 8583; 49 Fed. R. Serv. 3d (Callaghan) 140; 2001

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Cal. Daily Op. Service 2376; 2001

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When counsel (or pro se party)attests that his dysfunction in the case was due to medicinal impairment and/or substance abuse, that is substantial reason to have a judgment vacated. Leslie v. ICA 198 F.3d 1152; 1999 U.S. App. LEXIS 31932; 45 fed R. Serv. 3d (Callaghan)920;99Cal Daily Op. Service 9515; 99 Daily Journal DAR12323. In Falk v. Allen, 739 F2d 461; 1984 U.S. App. LEXIS 19906; 39 Fed. R. Serv. 2d(Callaghan) 901, the trial court was overturned because Allen went to Korea for medical treatment and hence did not reply to the complaint against her. Allen's conduct was non-culpable and the default judgment against her was reversed. Under Falk three factors should be evaluated in considering a motion to reopen a [default] judgement under Rule 60(b): 1) whether the Plaintiff [defendant] will be prejudiced; 2) whether the defendant [plaintiff] has a meritorious defense, and 3) whether the culpable conduct of the defendant [plaintiff] led to the default [judgment] The defendant's or counsel's physical or mental illness is a common ground for finding conduct non-culpable when considering whether to lift a [default] judgment or overturn the failure to lift a [default] judgment. See, e.g., Leshore v. County of Worcester, 945 F.2d 471 (1st Cir. 1991); Vac-Air, Inc. v. John Mohr & Sons, Inc., 471 F.2d 231 (7th Cir. 1973); Rooks v. American Brass Co., 263 F.2d 166 (6th Cir. 1959) (per curiam); Tri-Continental Leasing Corp. v. Zimmerman, 485 F. Supp. 495, 497 (N.D. Cal. 1980).TCI Group Life Insurance Plan, L v. Knoebber, 244 F.3d 691; 2001 U.S. App. LEXIS 8583; 49 Fed. R. Serv. 3d (Callaghan) 140; 2001 Cal. Daily Op. Service 2376; 2001 SANCTIONS AGAINST OPPOSING COUNSEL PURSUANT TO 60(B)(3) AND THE ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY

18 Rule 172 Candor Toward the Tribunal 19 [4] In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the 20 lawyer which will enable the tribunal to make an informed decision, whether or not the facts are 21 adverse. 22

Mr. Kealy appeared at the Case Management Conference on January 18th, 2007. He provided

23 documentation and correspondence he had received from Plaintiffs. However he intentionally failed 24 to provide a complete history of the documentation and correspondence as shown in Plaintiffs’ 25 exhibits. Mr. Kealy also failed to note for the court the fact that Plaintiffs had responded to the 26 mandatary disclosure requirements and the proposed Discovery Plan prior to action being taken on 27 behalf of his client (see exhibit “2"). This omission falsely led the Court to believe that Plaintiffs 28 -9-

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were non-compliant with all discovery matters. Additionally the omission of the documentation and

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correspondence carried on between Plaintiffs and defendants counsel could only lead the Court to

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believe that Plaintiffs were refusing to comply with court orders and thus appeared to be

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contemptuous of the Court. This may be the basis for the extreme sanctions imposed by the Court

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on Plaintiffs. Clearly the Aba Model Code of Professional Responsibility cited above requires all

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members of the ABA to be completely candid with the Court and to provide information to the Court

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which may not always be in the best interest of their client(s).

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Rule 173 Fairness to Opposing Party and Counsel

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A lawyer shall not:

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[1] Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal

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a document or other material having potential evidentiary value. A lawyer shall not counsel or

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assist another person to do any such act;

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Mr. Kealy concealed from the Court all documentation and correspondence between the parties

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which showed an ongoing effort by the Plaintiffs to keep Mr. Kealy apprized of the unfortunate

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results from the accident suffered by the Plaintiff Hiawatha Hoeft-Ross. If Mr Kealy had notified the

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Court of the information in his possession the Court would have been in a better position to act in

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a manner consistent with the long established case law involving medical disabilities which

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constitute excusable neglect. Mr. Kealy was fully aware that Plaintiff Hiawatha Hoeft-Ross was

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under medical orders to not engage in any “legal conflict.”

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[4] In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort

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to comply with a legally proper discovery request by an opposing party;

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Mr. Kealy was dilatory in corresponding with plaintiffs and in several instances ignored discovery

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requests outside of the purview of this Court as required by the FRCP: the movant (Plaintiffs) have

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in good faith conferred or attempted to confer with other affected parties in an effort to resolve the

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dispute without court action, or failing to file a motion to compel, whereas Mr. Kealy has been

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totally unamenable to negotiation which would avoid consuming the time of the Court. As Plaintiff

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states in exhibit 15A-C on December 4th, 2006, in response to Mr. Kealy’s letter of November 28th,

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2006 (exhibit 14), “Since you appear unwilling to stipulate to indefinite continuance or stabilization - 10 -

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of Mr. Hoeft-Ross’ medical conditions, we will prepare a motion before the court. We regret that we

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cannot stipulate to an agreement without intervention of the court.”

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Mr. Kealy placed additional stress on Plaintiff Hiawatha Hoeft-Ross by offering a settlement

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contingent upon Plaintiff Hiawatha Hoeft-Ross obtaining a medical release or he faced with

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defending a motion for summary judgement. (See exhibit “14").

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60(B)(3)

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60(b)(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other

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misconduct of an adverse party.

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Plaintiff contends that he was taken advantage of because of mental problems: "where it appears that

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the other party was guilty of fraud (60)(b)(3) or bad faith or imposed upon the infirm party by taking

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advantage of his infirmity to secure from him a contract or a conveyance which he otherwise would

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not have executed , the contract or conveyance may be set aside." 37 Am Jur 2d § 13.

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Rule 60(b)(3) allows relief if there was fraud, misrepresentation, or other misconduct of an adverse

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party. Relief is only available under Rule 60(b)(3) where the party’s misconduct prevented the

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[moving] party from fully and fairly presenting its case. Planned Parenthood v. Janklow, 2003 DSD

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2.

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MOTION TO EXTEND TIME OF DISCOVERY

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This is an exceptional circumstance, where Mr. Hoeft-Ross did not foresee the sudden intensity of

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his medical condition and that the circumstances present are clearly beyond the control of the

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litigant. Huzar v Greate Bay Hotel & Casino Inc. 375 N.J. Super 463, 868 A2d 364. The decision

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whether to grant a motion for extension of time lies within the broad discretion of the court and will

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be reversed on appeal only for an abuse of discretion. Miller v. Lint (1980), 62 Ohio St.2d 209. An

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abuse of discretion connotes more than an error of law or judgement; it implies that the court's

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attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

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St.3d 217, 219.

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unconscionable because of the fact that Mr. Hoeft-Ross is presently medically and mentally unstable

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and would not be able to fully participate in the Conference. The parties have yet to meet and confer

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and no discovery has been held at this time. Accordingly the plaintiffs motion for an enlargement

For the court to proceed with a case management conference would be

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1

of time should be granted. Glover v. Haferman 2006 WL 1388753 (E.D. Wis). See also Myles v.

2

Sapta supra. Mr. Kealy himself states in his Proposed Discovery plan of September 8th, 2006, that

3

“Defendants believe that the mere volume of the complaint, the difficulties experienced in

4

scheduling the meet and confer, some communication problems among the parties, and the

5

representation of plaintiffs of a medical condition currently impairing Plaintiff Hiawatha Hoeft-Ross,

6

requires special scheduling , as this matter likely cannot be completed within the time periods

7

provided by the rules.”

8 9

REQUEST FOR JUDICIAL NOTICE

10

Pursuant to Fed.R.Evid. 201 Plaintiff Hiawatha Hoeft-Ross requests this court to take judicial notice

11

of the following facts:

12

1)

Defendant Ernestine Montgomery and Cornelius Montgomery were named as

13

defendants in an action based on Ankenbrandt v. Richards 504 U.S. 689 (1992).

14

Filed in this Court in the District of Nevada, Civil Action CV-N-02-0160-HDM-

15

VPC.

16

2)

17

Defendants’ counsel Jeralyn Spradlin submitted Hiawatha Hoeft-Ross’ extensive medical findings to the court in a motion (exhibit unknown).

18

3)

Valerie P. Cooke read the report and took notice of it.

19

4)

Plaintiff Hiawatha Hoeft-Ross hereby asks this court to take judicial notice of the

20

medical report file by the defendants in case no. CV-N-02-0160-HDM-VPC.

21

Courts are presumed to be no more ignorant than the public generally, and will take judicial notice

22

of that which is generally known to be true. The medical report is not sealed and is public record in

23

the above named case CV-N-02-0160-HDM-VPC and is still available to this Court.

24 25

CONCLUSION

26

60(B) MOTION

27

It has been well established that excusable neglect is one of the foundations for a court to use in

28

remedying a decision which prejudices a participant their right to justice by reviewing and reversing - 12 -

1

judgement which deny the participant a fundamental right. In order to avoid further complications

2

due to Plaintiff Hiawatha Hoeft-Ross’ current inability to address legal proceedings in a

3

knowledgeable fashion, it would appear that all legal proceedings in abeyance until such time as

4

Plaintiff Hiawatha Hoeft-Ross’ conditions are found to be sufficiently stabilized.

5

The plaintiff has provided this Court with substantial documentation to demonstrate that the failure

6

of Plaintiff to appear at the Scheduling Conference was due to a medical disability arising from an

7

accident which exacerbated a pre-existing condition and medical orders to not participate in any legal

8

proceeding until the medical condition is stabilized. The court has pre-existing knowledge of the

9

medical conditions of the Plaintiff and should recognize the problems that would arise from

10

proceeding against medical advice. As an example, in the Ross v. Montgomery case ( CV-N-02-

11

0160-HDM-VPC ) Plaintiff Hiawatha hoeft-Ross forgot to take his medication and stipulated by

12

mistake to something he was not aware he stipulated to, which resulted in prolonged litigation.

13

Therefore Plaintiff Hiawatha Hoeft-Ross requests that the orders made at the Scheduling Conference

14

held January 18th, 2007, be voided.

15 16

SANCTIONS AGAINST OPPOSING COUNSEL PURSUANT TO 60(B)(3) AND THE ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY

17 18

The actions of Mr. Kealy both of omission and commission by failing to provide the court with a

19

complete history of this matter and his blatant lack of candor to the Court are sufficiently egregious

20

to warrant sanctions. The magnitude of his failure to be candid has left the Court blindfolded and

21

unable to properly schedule this action. Due to Mr. Kealy’s failure to communicate of his awareness

22

of the medical situation, Plaintiffs have been severely prejudiced.

23 24

MOTION TO EXTEND TIME OF DISCOVERY

25

Plaintiff Hiawatha Hoeft-Ross requests that the Scheduling Conference be set to be heard 180 (one

26

hundred and eighty) days from February 15th, 2007. Plaintiff suggests that he provide a monthly

27

report from his physician as to his medical status. Plaintiff acknowledges that he may not be

28

sufficiently stabilized to proceed at that time but he sets forth proposal in good faith with the hope - 13 -

1

that he will be stabilized earlier and medically released so that he may proceed. Plaintiff would like

2

the Court to take note of Tamburina v. Combined Insurance Company of America, 2007 WL

3

259825 (Cal.App. 3 Dist.) wherein, “Parties’ stipulation to continue trial date due to plaintiff and his

4

counsel’s illness were sufficient to demonstrate 424-day period of impracticability, as required to

5

support impracticability tolling exception to application of five-year limit on bringing a case to trial;

6

stipulations were specific regarding severity of illnesses, their extent and duration, and necessity of

7

surgery in both cases.” West’s Ann.Cal.C.C.P. §§ 583.310, 583.340(c).

8 9

REQUEST FOR JUDICIAL NOTICE

10

Plaintiff hereby requests this honorable Court to take Judicial notice pursuant to Fed.R.Evid. 201

11

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

12

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

13

Hoeft-Ross in this matter.

14 15 16

PRAYER FOR RELIEF WHEREFORE Plaintiff prays for the following relief:

17

1)

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

18

A. that the sanctions against Plaintiffs be set aside,

19

B. that discovery be granted to Plaintiffs,

20

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

21

to

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

22

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

23

2)

That the Court sanction Opposing Counsel as it deems appropriate;

24

3)

That the Court grant an extension of 180 (one-hundred and eighty) days or until a

25

medical finding has been made that plaintiff Hiawatha Hoeft-Ross’ conditions are

26

sufficiently stabilized;

27 28

4)

That the Court take Judicial Notice of Plaintiffs medical records pursuant to FRE 201 of Case No. CV-N-02-0160-HDM-VPC as the basis for Plaintiff Hiawatha Hoeft- 14 -

1 2

Ross’ medical conditions; 5)

Whatever the Court deems appropriate.

3 4 5 6

Respectfully Submitted,

7 8 9 10

____________________________

11

Hiawatha Hoeft-Ross

12

DATED February 12th, 2007

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1 2 3 4 5 6

PROOF OF SERVICE BY MAIL

7

Pursuant to FRCP 5(b), I certify that, I on February 12, 2007, I deposited in the U.S. Mail at Reno,

8

Nevada, in a sealed envelope, a 60(B) MOTION, SANCTIONS AGAINST OPPOSING

9

COUNSEL PURSUANT TO 60(B)(3) AND THE ABA MODEL CODE OF PROFESSIONAL

10

RESPONSIBILITY, MOTION TO EXTEND TIME OF DISCOVERY, and a REQUEST FOR

11

JUDICIAL NOTICE and Points and Authorities in support of motion included therein and the

12

declaration in support motions of Hiawatha Hoeft-Ross, and attachments; a true and correct copy

13

postage prepaid thereon, addressed to:

14 15

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

16 17 18 19

_____________________________ Monica Hoeft-Ross

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