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James Alan Bush 471 East Julian Street San Jose, California 95112 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 (PR) JF NOTICE OF MOTION FOR RELIEF FROM JUDGMENT Hearing Date: Hearing Time: Courtroom: Judge: [date] [time] [dept] Phyllis J. Hamilton

TO THE DEFENDANTS AND THEIR RESPECTIVE ATTORNEYS-OF-RECORD: PLEASE TAKE NOTICE that James Alan Bush, the plaintiff in the abovecaptioned matter, has requested a hearing on the attached Motion for Relief from Judgment in Courtroom [room] of the above-stated court, located at 1301 Clay Street, Oakland, California, at [time A.M./P.M] on [date]. Dated: December 5th, 2011 By: X James Alan Bush Plaintiff in pro per 08-cv-01354 (PR) JF

NOTICE

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James Alan Bush 471 East Julian Street San Jose, California 95112 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 (PR) JF MOTION FOR RELIEF FROM JUDGMENT [Fed. R. Civ. P., Rule 60(b)6)] Hearing Date: Hearing Time: Courtroom: Judge: RELIEF SOUGHT [date] [time] [dept] Phyllis J. Hamilton

Plaintiff, James Alan Bush, moves this Court, pursuant to Rule 60(b) (6) of the Federal Rules of Civil Procedure, for an order setting aside the judgment dismissing the above-captioned matter, which was entered on November 4th, 2011. GROUNDS FOR RELIEF Extraordinary circumstances in this case require that the judgment entered in this action be set aside, and no other grounds under Rule 60(b) and no other procedure aside from an appeal is available to grant this MOTION PAGE 1 OF 4 08-cv-01354 (PR) JF

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relief that justice requires. In particular, as more fully shown in the Declaration of Plaintiff: 1. The judgment dismissing this case was erroneously entered in that the Court failed to notice the plaintiff of an order with which he purportedly failed to comply, specifically, the order setting a deadline to file proof of service of summons to the defendants. Plaintiff will prove that, due to a clerical error, this order was never delivered to him because the Court failed to properly address the envelope containing the order (as shown by Docket No. 138), even though the plaintiff notified the Clerk by letter of his new address two months prior and also had filed several documents with the Court using his current address, and that the Court itself used his current address on several previous and subsequent occasions (Plaintiff will also note that the address mistakenly used was not even the last known address for the plaintiff). Plaintiff will argue that, because this clerical error was no fault of his own, additional time should be granted to comply with the order, and that the dismissal should be set aside pursuant to Rule 60(b) (6) of the Federal Rules of Civil Procedure, which permits a court to relieve a party from an otherwise final judgment for any other reason not listed in paragraphs 1 through 6, subdivision b, of the aforestated rule; 2. The only other remedy available to the plaintiff to remedy this injustice is the filing an appeal of the judgment, which is the required diligence of the plaintiff in order to protect his right to appeal an adverse judgment [see e.g., Dunn v. Cockrell, 302 F.3d 491, 492-494 (5th Cir. 2002) (per curiam) (Rule 60(b) is not a MOTION PAGE 2 OF 4 08-cv-01354 (PR) JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MOTION 3.

substitute for a proper and timely appeal) A notice of appeal was ]. filed on November 28th, 2011. Per Rule [rule] of the Federal Rules of Appellate Procedure, Plaintiff notified the Ninth Circuits Appellate Court that this Motion for Relief from Judgment is pending in this Court. Nevertheless, the plaintiff is seeking relief under Rule 60(b), as well, because it is the most appropriate and efficient form of relief from an adverse judgment under the circumstances. The extraordinary circumstances raised by this motion are not grounds for relief under any other provision of Rule 60(b) because: a. The only mistake, inadvertence, or excusable neglect that is conceivably within the meaning of Rule 60(b) (1) was that of the Clerk. There was no mistake, inadvertence, or excusable neglect on the part of the plaintiff. b. Even though available to the Court and the Clerk at the time the judgment was entered, the information conerning the failure of the Clerk to properly address its correspondence to the plaintiff is not newly discovered evidence within the meaning of Rule 60(b) (2), in that the discovery by the plaintiff that the order was sent to the wrong adress is not relevant to the grounds of an otherwise valid judgment, but only whether it was entered under the mistaken assumption that the plaintiff had received the order, and had actually failed to comply with it. c. There was no fraud or misconduct by an opposing party as required under Rule 60(b) (3). d. There is no claim that the judgment is, per se, void, because the jurisdiction of the Court to determine the matter was unquestioned. Rule 69(b) (4) is patently inapplicable. PAGE 3 OF 4 08-cv-01354 (PR) JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MOTION 4.

e.

There is no underlying judgment that has been set aside, nor is the ownership determination made in this Courts judgment the type of judgment that has prospective application within the meaning of Rule 60(b) (5).

This motion is timely because it is being raised at the earliest possible time following the discovery of the extraordinary circumstances that justify relief. RECORD ON MOTION

This motion is based on this document, the attached Notice of Motion, Certificate of Service, the Supporting Memorandum of Law, the Declaration of Plaintiff, the relevant pleadings, papers, and other records on file in this action, specifically, the judgment dismissing this case, entered on November 4th, 2011, and the returned envelope that contained the order which was the basis for the judgment, filed under docket number 138, and on whatever argument and evidence may be presented at the hearing of this motion. Dated: December 5th, 2011 By: X James Alan Bush Plaintiff in pro per // // // // // // //

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