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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 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, Plaintiff in the above-captioned 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 // NOTICE PAGE 1 OF 1 08-cv-01354 (PR) JF

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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 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 dismissed the case for the failure of the plaintiff to file proof of service of summons to the defendants. In this motion, Plaintiff will prove that, prior to the time the order was made, at least one defendant, namely, Long Thang Cao, returned a waiver of service of summons [see Docket No. 134], which constitutes valid proof of service,1,2 thus precluding dismissal for the failure to file such proof. Also, Plaintiff will argue that, even though he requested all defendants to waive service of summons in the manner required by Fed. R. Civ. P. 4(d) (1), his failure to prove service does not affect its validity.3 Finally, Plaintiff will show that the Court has already deemed the proof of service valid by advancing this case to the discovery phase [see Docket No. 126]. Accordingly, Plaintiff will request that the Court set aside its order of dismissal, pursuant to Fed. R. Civ. P. 60(b) (6), 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, and that it allow the plaintiff to amend the proof of service to include the remaining defendants, pursuant to Fed. R. Civ. P., Rule 4(l) (3); 2.
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The only other remedy available to the plaintiff, aside from that Fed. R. Civ. P., Rule 4(d) (4) states that [w]hen the plaintiff files a waiver, proof of service is not required. Fed. R. Civ. P., Rule 4(l) (3) states that if service is waived, proof of service by a process server is not required. Fed. R. Civ. P., Rule 4(l) (3) states that a [f]ailure to prove service does not affect the validity of service. PAGE 2 OF 4 08-cv-01354 (PR) JF

MOTION

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provided by Fed. R. Civ. P. 60(b) (6), is the filing an appeal of the judgment, which is the due diligence required 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 substitute for a proper and timely appeal) ]. Accordingly, Plaintiff filed a notice of appeal of the judgment in the Appellate Court for the Ninth District, on November 28th, 2011, and provided notice of this motion by and through the Appellants Informal Brief on [date]. 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 Court. There was no mistake, inadvertence, or excusable neglect on the part of the plaintiff. b. The waiver of service of summons returned by the defendant is not newly discovered evidence within the meaning of Rule 60(b) (2), in that the plaintiff was not unaware that a waiver of service of summons had been returned by the defendant and was available to the Court at the time the judgment was entered. 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 60(b) (4) is patently inapplicable. e. There is no underlying judgment that has been set aside, nor is PAGE 3 OF 4 08-cv-01354 (PR) JF

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there a significant change in circumstances that has prospective application to the equity of the judgment 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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