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Lunday v. Dep't of Interior

June 11, 2009

DONNA LUNDAY, PLAINTIFF,
v.
DEPARTMENT OF INTERIOR, DIRK KEMPTHORNE, SECRETARY OR HIS PREDECESSOR-IN-OFFICE, DEFENDANT.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

ORDER GRANTING PLAINTIFF'S MOTION TO VACATE JUDGMENT

I. BACKGROUND

On November 9, 2007, the plaintiff, Donna Lunday, through her attorney of record, Bernice C. Delorme, filed a complaint against the Defendant. See Docket No. 1. The Clerk of Court's Office issued a summons on November 13, 2007. See Docket No. 2. On April 18, 2008, Magistrate Judge Charles S. Miller Jr. noted that the case had been on the Court's docket for more than five months with no indication that the summons had been served. See Docket No. 3. Judge Miller ordered Lunday to update the Court on the status of the case and to show cause why the case should not be dismissed for failure to prosecute. Judge Miller gave Lunday until May 19, 2008, to comply with the directive.

On May 18, 2009, Lunday filed a "Motion for Extension of Time to Serve Opposing Party." See Docket No. 4. Lunday's attorney, Bernice Delorme, indicated that she had agreed to prepare the complaint and summons before the statute of limitations ran on Lunday's claim. However, according to Bernice Delorme, she informed Lunday that "filing her action would simply give her additional time to continue to seek other legal counsel." See Docket No. 4-2. The motion for extension of time was meant to allow another law firm to determine whether it was willing to represent Lunday in this case. Judge Miller granted the motion and gave Lunday until June 2, 2008, to serve the summons and complaint on the Defendant. See Docket No. 5.

On June 9, 2008, Judge Miller issued a Report and Recommendation in which he noted that there was nothing in the record to indicate the summons was ever served on the Defendant and, therefore, recommended that the case be dismissed without prejudice for failure to prosecute. See Docket No. 6. The Court adopted the Report and Recommendation on June 26, 2008, and judgment was subsequently entered against Lunday. See Docket Nos. 7 and 8.

On June 3, 2009, Lunday sent a letter to the Clerk of Court's Office in which she claims the following:

I received an email from my attorney Bernice Delorme on June 27, 2008 informing me that my case was dismissed without prejudice.

I'm disputing this decision. My attorney Bernice Delorme was very unprofessional, dishonest and incompetent with my case. Mrs. Delorme accepted my case and filed it on November 9, 2007. . . .

I had no knowledge of any of the court documents. Late May 2008 again, I requested a copy of my case. Mrs. Delorme emailed a copy of my case; this was the first time seeing what my case looked like. Mrs. Delorme failed to include all other documents that pertained to my case.

When my case was dismissed with prejudice, I immediately contacted the courts and requested all documents that pertained to my case. All the documents were sent to me, I was very upset. I told Mrs. Delorme because of her friendship with the opposing party she deliberately did not do what she was supposed to do. . . .

In closing I am requesting a reconsideration of the decision of Magistrate Judge Charles S. Miller Jr. as it pertains to my case. I would like to reopen this case.

See Docket No. 9 (errors in original). The Court will treat Lunday's letter as a motion to vacate the judgment.

II. LEGAL DISCUSSION

Lunday moves for the judgment to be vacated. A party may seek relief from a judgment pursuant to Rule 60(b) of the ...


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