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Rusk v. Fidelity Brokerage Services LLC

United States District Court, D. Utah

May 22, 2019

ZACHARY R.E. RUSK, Plaintiff,


          Robert J. Shelby, Chief District Judge

         On April 30, 2019, the court held a hearing during which it informed the Plaintiff, Zachary R.E. Rusk, that his Third Amended Complaint would be dismissed as a sanction for Rusk's serious violations of an Order Limiting Contact[1] requiring him to curtail communications with counsel for the Defendant, Fidelity Brokerage Services, LLC. Rusk had violated that Order Limiting Contact by sending numerous and threatening emails to opposing counsel. Before the April 30 hearing, the court received briefing related to a Motion for Order to Show Cause why Rusk should not be sanctioned for violating the Order Limiting Contact. The briefing led the court to determine the only appropriate response to Rusk's conduct was dismissal of his claims with prejudice. Thus, soon after the April 30 hearing concluded, the court issued a Memorandum Decision and Order dismissing Rusk's Third Amended Complaint[2] and entered Judgment in Fidelity's favor.[3]

         Now before the court is Rusk's Objection to Order[4] in which he “objects on numerous counts” to the court's Order and Judgment. The court OVERRULES these objections.

         Though no Rule is cited in Rusk's Objection, the court construes it as a motion for relief under Rule 60(b), Federal Rules of Civil Procedure. This subsection of the Rule provides that “[o]n 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 a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.[5]

         “Relief under subsection (b) ‘is extraordinary and may only be granted in exceptional circumstances.'”[6] Those “‘seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal.'”[7] Relief under the Rule is “difficult to attain and is appropriate only when it offends justice to deny such relief.”[8]

         Rusk objects to the court's Memorandum Decision and Order and subsequent Judgment for several reasons. None are expressly couched in a manner cognizable under Rule 60(b); but even when liberally construed, none meet the “high hurdle” to justify relief from the Order or Judgment.[9]

         First, Rusk recites details from conversations he had with a court docketing clerk immediately before and after the April 30, 2019 hearing. These personal conversations were unknown to the court when it entered its Order and Judgment, largely do not relate to the subject of the court's ruling, and-most critically-do not excuse the conduct which led the court to sanction Rusk and dismiss his action: threatening and endless communications from Rusk to Fidelity's counsel. Though Rusk suggests the conversations concerned whether he was going to voluntarily dismiss his case or appeal any adverse ruling, the conversations neither affected the court's Order nor appear to have affected Rusk's own actions. Rusk did not dismiss his case on his own volition. Rather, the court informed Rusk at the April 30 hearing that his case would be dismissed and the court issued a written decision to that effect later that same day. Concerning any appeal, Rusk may still elect to appeal the dismissal of his case-an option the court openly discussed with him at the April 30 hearing.

         Second, Rusk argues the court relied in its Order on an incorrect fact-that Rusk has been in contact “for years” with a former attorney, Mr. Cullimore. The basis for the court's statement was an email from Rusk to opposing counsel dated February 12, 2019, in which Rusk stated: “Would be nice to have something to do or at least be able to get a new hobby eventually as opposed to writing you emails all day eh (I'll remind you that I have written cullimore [sic] for years now)”.[10] But even if the court somehow was unable to rely on this fact, derived from Rusk's own email, it is immaterial, as omitting it does not alter the Order's analysis. The fact was included in a part of the Order evaluating Rusk's culpability for his behavior, in a paragraph reciting Rusk's prior abuses of the legal ...

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