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Ertsey v. Perry

United States District Court, D. Hawaii

October 12, 2017




         Pro se Plaintiff Richard Gabriel Ertsey (“Plaintiff”) filed his Complaint for a Civil Case (“Complaint”) against Defendants Katie Perry (“Perry”) and Andrea Heckler (“Heckler, ” collectively “Defendants”) on March 7, 2016. [Dkt. no. 1.] This case was closed pursuant to the “Notice of Voluntary Dismissal with Stipulation Pursuant to F.R.C.P. 41(a)(1)(A(i) [sic]” (“Notice of Dismissal”) filed on March 29, 2017. [Dkt. no. 14.]

         Before the Court is Plaintiff's “Motion to Re-Open Case, ” filed on July 27, 2017 (“7/27/17 Motion”). [Dkt. no. 17.] The 7/27/17 Motion seeks to reopen Plaintiff's case against Heckler. On August 2, 2017, Plaintiff filed a memorandum that this Court construes as a further memorandum in support of the 7/27/17 Motion (“8/2/17 Memorandum”). [Dkt. No. 19.] Defendants filed their memorandum in opposition on August 3, 2017.[1] [Dkt. no. 21.] Although Plaintiff's 8/2/17 Memorandum requested additional time to respond to the memorandum in opposition, Plaintiff did not file a reply. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). Plaintiff's 7/27/17 Motion is hereby denied for the reasons set forth below.


         The Complaint alleges that: “From Dec 23.2015 through Feb 26.2016 kapulei [sic], HI Katie Perry and Andrea Heckler have inquired about and pressured to answer Richard Ertsey about his U.S. Army and VA and Social Security related information without due course of reason at a Family Court Hearing.” [Complaint at pg. 4.] Plaintiff alleges that the information Defendants sought was confidential, protected by statutory privilege, and subject to a protective order. According to Plaintiff, the information was irrelevant, hearsay, and sought for improper purposes. [Id.] Plaintiff alleges that, as a result of Defendants' actions, he has suffered severe emotional distress, harm to his personal and military reputation and credibility, embarrassment, and inconvenience. He therefore alleges that Defendants violated his civil rights. [Id. at pg. 5.] Plaintiff's requested relief included:

The protected list of questions and any and all of the statements by Katie Perry and Andrea Heckler in relation to those questions to be vacated in any and all Courts of Law as well as anywhere else, as well as any and all of Richard Ertsey's answers to be vacated: deleted from any court's entery [sic], sealed and deemed as non court-submittable.


         According to Defendants, Plaintiff and Perry - who have one minor child - were divorced on August 23, 2010 in a Washington state court. Plaintiff and Perry stipulated to that Perry would be able to relocate to Hawai`i with her current husband, who is in the United States Army, and Plaintiff would follow. Plaintiff and Perry sought enforcement and modification of their divorce decree in the Hawai`i family court in 2014. On or about November 30, 2015, Perry filed a motion in the Hawai`i family court seeking custody changes to allow her to relocate to South Carolina because of her husband's orders from the Army. Heckler represented Perry in the custody proceedings. [Mem. in Opp. at 3-4.]

         The Notice of Dismissal stated that the case was “voluntarily dismissed without prejudice against the Defendants, ” with the stipulation that neither the parties nor anyone else acting on their behalf would request attorney's fees and costs regarding this matter from the opposing party. The 7/27/17 Motion asks this Court to re-open the case because the Notice of Dismissal was without prejudice.


         This Court construes Plaintiff's 7/27/17 Motion as a motion for relief pursuant to Fed.R.Civ.P. 60(b). Cf. MacDonald v. United States, 677 F. App'x 362, 363 (9th Cir. 2017) (appeal from the denial of a Rule 60(b) motion that sought to reopen the appellant's case, vacate his voluntary dismissal without prejudice, and enter a new dismissal with prejudice). Rule 60(b) states:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...

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