1 Hiawatha Hoeft-Ross

Monica Hoeft-Ross
2 PO Box 6946
(775) 544-2721
3 In Pro Se
4
5
6 UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
7 *****
8
9 Hiawatha Hoeft-Ross Et. Al.
CASE NO. CV-N-05–0121 LRH(VPC)
10
Plaintiffs,
11 60(B) MOTION
12 vs. SANCTIONS AGAINST OPPOSING
COUNSEL PURSUANT TO 60(B)(3)
13 Werner and Christel Hoeft, Et Al. AND THE ABA MODEL CODE OF
PROFESSIONAL RESPONSIBILITY
14 Defendants.
_______________________________/ MOTION TO EXTEND TIME OF DISCOVERY
15
REQUEST FOR JUDICIAL NOTICE
16
17
18
19
20 COMES NOW PLAINTIFF HIAWATHA HOEFT-ROSS and asks this Honorable Court to
21 set aside the order of January 18, 2007, on the grounds of Excusable Neglect, Illness of Party, and
22 Sanctions against opposing counsel Michael Kealy for not being candid with this tribunal. The court
23 has not been apprized of the additional injuries suffered by Mr. Hoeft-Ross although Mr. Kealy,
24 counsel for the defendants, has been kept in regular contact as to the situation through
25 correspondence from Plaintiff Hiawatha Hoeft-Ross. Mr. Kealy only presented evidence of
26 correspondence up to September 8th, 2006 when there was actually correspondence up to January of
27 2007. Declaration of Hiawatha Hoeft-Ross in Support of Motions attached hereto.
28
 1 FACTS
2 Plaintiffs submitted a discovery plan on July 27th, 2006, and sent a copy to Mr. Kealy by certified
3 mail (see exhibits "1- 1G" ). The Plaintiffs did not submit a Discovery Plan within the 30 days
4 because it was Plaintiff's history with this court that the represented party be the first one to draft
5 such documents. Plaintiffs wrote two letters to Mr. Kealy regarding the meet and confer and an
6 agenda regarding the meet and confer. The August 23rd letter proposes a date for a meet and confer
7 and advises counsel that Plaintiff Hiawatha Hoeft-Ross is very ill (see exhibit "2") The August 24th
8 letter addresses the Agenda (see exhibit "3 and 3A"). The discovery plan of the defendants on
9 September 8th, 2006 was submitted to the court by Mr. Kealy at the same time he sent a copy to the
10 plaintiffs. This plan was completely non-compliant with the order of the court by being way outside
11 the time frame of the 30-day disclosure requirement of the Local Rules. The differences have yet to
12 be reconciled. Mr. Kealy submitted his Proposed plans and witness list on the 8th day of September
13 (see exhibit"4") without advising plaintiffs either orally or in writing, thus forestalling any meeting
14 of the minds. On September 8th, 2006, Plaintiff Hiawatha Hoeft-Ross received a note from his
15 specialist regarding his medical and mental health status, that he was not to partake in a legal
16 conference (see exhibit"5"). Plaintiff Hiawatha Hoeft-Ross had an appointment with Dr. Steve
17 Berman of Sierra Pain Consultants on September 22nd , 2006 for his medical conditions (see exhibit
18 "6" and "6A" "6 B") for two surgical procedures namely a "Cervical facet" and a "Cervical Epidural
19 Steroid Infiltration." Plaintiff Hiawatha Hoeft-Ross moved for and Extension of Time, due to his
20 severe pain and was seen in the hospital for it (see exhibit "7 - 7C"). Plaintiff Hiawatha Hoeft-Ross
21 submitted to the DMV from his specialist that he was in a hit and run accident on October 12th 2006
22 in order for him to get the records of the accident (see exhibit "8") See exhibit"9" police report of
23 hit and run accident on October 12th 2006, and was seen in the emergency room for his injuries and
24 was referred to a specialist. This Accident exacerbated Plaintiff Hiawatha Hoeft-Ross' existing
25 injuries and/or created new ones. On November 1st 2006 Plaintiff Hiawatha Hoeft-Ross saw his
26 specialist and said specialist prepared a letter for the court (see exhibit "10" and "10A")
27 Unfortunately when Plaintiff thought he had sent this document to the Court an opposing counsel,
28 but it subsequently was discovered in his "files"while preparing this motion. In a write-up on

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 1 November 13th 2006, by Dr. Berman, the surgical procedures that Plaintiff Hiawatha Hoeft-Ross
2 underwent were not effective at alleviating his pain or stabilizing his condition (see exhibit
3 "11").Plaintiff advised counsel on November 21st 2006 of this (see exhibit "12" through "12D") and
4 asked to stipulate to an indefinite continuance, but did not receive an answer by November 27th 2006
5 (see exhibit "13-13D"). Plaintiff then received a letter from counsel stating that they would not
6 stipulate to an indefinite continuance, but seek out a summary judgement (see exhibit "14"). Plaintiff
7 wrote back to Mr. Kealy, Defendants' counsel and stated that he regretted that a stipulation cannot
8 be reached without court intervention ( see Exhibits "15-15C") plaintiff Monica Hoeft-Ross wrote
9 Mr. Kealy on January 3rd 2007, stating that Hiawatha Hoeft-Ross' condition had not stabilized and
10 was awaiting their summary judgement (see exhibit "16-16C"). Plaintiffs received a response from
11 Mr. Kealy on January 10th 2007, confused about the awaiting of a summary judgement and
12 discussing a resolution. As stated before, Plaintiff Hiawatha Hoeft-Ross was in no condition to
13 discuss any such resolution as he was not mentally capable of resolving legal matters (see exhibit
14 "17").
15 Dr. John N. Chappel wrote a declaration in that Plaintiff Hiawatha Hoeft-Ross has not been able to
16 function well enough to attend court (see exhibit "18"). Plaintiff Hiawatha Hoeft-Ross has had
17 another appointment with Reno Diagnostics for diagnostic medical examinations to be performed
18 due to his non-responsiveness to previous medical procedures (see exhibit "19").
19
20 ARGUMENT
21 60 (b)Motion
22 Grounds For a 60(b) Motion:
23 Rule 60. Relief from Judgment or Order
24 (a) Clerical Mistakes.
25 Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from
26 oversight or omission may be corrected by the court at any time of its own initiative or on the motion
27 of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such
28 mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter

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 1 while the appeal is pending may be so corrected with leave of the appellate court.
2
3 (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.
4 On motion and upon such terms as are just, the court may relieve a party or a party's legal
5 representative from a final judgment, order, or proceeding for the following reasons: (1) mistake,
6 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence
7 could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
8 heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse
9 party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior
10 judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable
11 that the judgment should have prospective application; or (6) any other reason justifying relief from
12 the operation of the judgment. The motion shall be made within a reasonable time, and for reasons
13 (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
14 A motion under this subdivision (b) does not affect the finality of a judgment or suspend its
15 operation. This rule does not limit the power of a court to entertain an independent action to relieve
16 a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally
17 notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court.
18 Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill
19 of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by
20 motion as prescribed in these rules or by an independent action.
21 Rule 60(b) is meant to be remedial in nature and therefore must be liberally
applied See Butner v. Neustadter, 324F.2d 783 (9th Cir 1963). Second, judgement
22 by default is a drastic step appropriate only in extreme circumstances; a case
should , whenever possible, be decided on the merits. See Schwab v. Bullock's Inc.,
23 508 F.2d 353 (9th Cir 1974). More specifically, in applying the general terms of
Rule 60(b) to default judgements, this court has emphasized that such judgements
24 are "appropriate only in extreme circumstances; a case should, whenever possible,
be decided on the merits. Falk v. Allen 739 F.2d 461 (9th Cir 1984).The district
25 Court denied [her] motion to set aside default judgement based on excusable
neglect, because [she] was grieving and moving her residence at the time. Default
26 judgement was reversed and remanded. TCI Group Life Insurance Co., v.
Knoebber 244F.3d 691 (9th Cir 2001).
27
" We recognize that a somewhat delicate balance exists between the necessity for
28 a trial judge to exercise control and management over his/her courtroom and

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 1 docket and the litigants' substantial rights which may result which may from time
to time suffer as a result of this acknowledged need " We conclude therefore that
2 the sanction of default was too harsh and that the default judgement should be
vacated. Vac-Air v. Mohr 471 F.@d 231(7th Cir 1973).
3
4 A party may obtain through full vacation of the [prior] judgement or by partial
vacation or modification of that Judgement In re Whitman 690 N.E.2d 535 Civ.R.
5 60(b) is remedial and should be liberally construed so the ends of justice may be
served Kay v. Marc Glassman Inc., (1996), 76 Ohio St.3d 18, 665 N.E.2d 1102. As
6 cited in Banfield v. Brodell 2006 Ohio 5267.
7 The determination of whether a particular failure is excusable neglect “must be
made from all the individual facts and circumstances in each case.” D.G.M. Inc.,
8 v. Creamans Concrete & Supply co., Inc., (1996) 111 Ohio App.3d 134, 675 N.E.2d
1263.As cited in Banfield v. Brodell 2006 Ohio 5267.
9
Plaintiff contends that the reason for not appearing at the January 18th 2007 conference was that of
10
excusable neglect, in that Plaintiff Hiawatha Hoeft-Ross has a severe brain impairment/dysfunction
11
due to a closed head injury, he often forgets appointments and/or mixes up dates. This
12
impairment/dysfunction is beyond his control. At the time Plaintiff Hiawatha Hoeft-Ross began this
13
action, he discussed the matter with his specialist and was advised that he was sufficiently stabilized
14
to be able to properly participate in litigation. However, the hit and run accident in October of 2006
15
apparently caused either a new injury or an exacerbation of the existing injuries. And destabilized
16
his ability to function in a legal situation and he has been advised that he should not make any legal
17
decisions and has been advised that he "has not been able to function well enough to attend court."It
18
is for these reasons that Plaintiff Hiawatha Hoeft-Ross has not attempted to make any legal decisions
19
or to participate in any court function. Clearly the automobile accident in October of 2006 was not
20
due to any negligent and/or intentional act of Plaintiff. Thus the injuries which are not stabilized are
21
beyond the control of Plaintiff and constitutes excusable neglect.
22
23
"Because the Five-year statute of is designed to prevent avoidable delay, an
24 exception to the statute is recognized where, due to the circumstances beyond the
plaintiffs control, moving the case [to trial] is impracticable for all practical
25 purposes (§ 583.340(c): see Hughes v. Kimble (1992) 5 Cal.App.4th 59, 6 Cal.Rptr.
2d 616. Emphasis added.
26
27 ...Bankruptcy Court to find excusable neglect [is] if the movant is prevented
from complying with the deadline by an act of God or some other circumstance
28 beyond the movant's control. Pioneer Investment Services Company v. Brunswick

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 1 Associates Limited Partnership et.al. 507 U.S. 380: 113 S.Ct. 1489; 123 L. Ed 2d
74;1993 U.S. LEXIS 2402; 61 U.S.L.W. 4263; 25 Fed R.Serv. 3d (Callaghan) 401;
2 Bankr. L. Rep. (CCH) P75, 157A; 28 Collier Bankr.Cas. 2d (MB) 267;24 Bankr
Ct Dec.63; 93 Cal Daily Op Service 2096; 93 DAR 3705; 7 FLA L. Weekly Fed. S
3 101
4 In Re Pioneer 507 U.S. 380, 113 S.Ct. 1489, 123 L. ED2d 74(1993) (finding that
attorneys inadvertence failure to file proof of claim within the court's deadline
5 constitutes excusable neglect, and for an attorney's dire medical conditions , see
Thomas Murkerson 2005 WL 3591958 (M.D. Ga. December 30, 2005)(counsel's
6 failure to meet filing deadline due to medical condition and subsequent
convalescence constituted "excusable neglect")
7
“...Plaintiff’s counsel also attached, in camera, a detailed summary of his medical
8 problems. It appears that the best characterization of counsel’s failure to appear
is excusable neglect as opposed to any willful or bad faith conduct. This would not
9 support a sanction of dismissal.” Sampson Fire Sales v. Oaks 201 F.R.D. 351
10 In Lambert v. Jo An Barnhart 2006 WL 832516 (N.D. Tex) FN2: A one half page
letter from counsel’s physician describing his medical condition and the course of
11 his treatment has been tendered to the court In Camera.
Plaintiff’s motion is subject to the “excusable neglect” standard of Fed.R.Civ.P.
12 6(b) [sic] that rule provides in, in relevant part”
When by these rules or by a notice given thereunder or by order of
13 the court an act is required to be done at or within a specific period
of time, the court for cause shown may at any time in its discretion,
14 upon motion made after the expiration of the specific period permit
to be done where the failure to act was the result of excusable
15 neglect....
Fed.R.Civ.P. 6(b) [sic] (emphasis added) . The determination of what constitutes
16 “excusable neglect” is an equitable one. See Pioneer 507 U.S. 380, 113 S.Ct. 1489,
123 L. ED2d 74(1993)
17
18 The bankruptcy court's finding did not consider the impact of the recent trauma
of the spouse's illness upon the attorney's ability to focus upon this appeal, nor did
19 that court's finding take into account the reality that the order appealed from was
entered on a Friday. Although we do not know when the attorney received that
20 order, acknowledging the time required for receipt of the order by mail, he had less
than ten days to focus upon the order and the need for appeal. In the context of the
21 equitable decision on the attorney's motion for an extension, the extraordinary
circumstances presented in this case and the absence of factors supporting denial
22 of the motion required that this motion be granted.
We recognize that it appears harsh, in the words of the Waterman opinion, to
23 address the bankruptcy court's decision as unreasonable. We are, however, left
with a "definite and firm conviction that the [bankruptcy court] committed a clear
24 errorofjudgment."InreM.J.Waterman&Assocs.,Inc.,2000FEDApp.0324P Becausethebankruptcycourtfailedtodistinguishtheparticularfactsof
this case from neglect due to "law office upheaval," we find that the bankruptcy court abused its
25 discretion in denying the Debtor's motion for an extension of the time to appeal based on
excusable neglect.
26
A party seeking to set aside a default judgement under T.R. 60(b)(1) must
27 demonstrate that the judgement entered was as a result of mistake, surprise or
excusable neglect. The trial court’s discretion in this area is necessarily broad
28 because any determination of mistake surprise or excusable neglect must turn on

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 1 the particular facts and circumstances of each case. Kmart Corp., v. Englebright
719 N.E.2d at 1253.
2
3
In light of due process concerns raised by the conclusive foreclosure of legal
4 rights, the district court may not enter a judgment of dismissal or default as a
sanction without finding "willful" noncompliance or bad faith, which in this
5 context means a voluntary, intentional refusal to comply with a discovery order.
See Gocolay v. New Mexico Fed. Sav. & Loan Ass'n , 968 F.2d 1017, 1020-21
6 (10th Cir. 1992); M.E.N. Co. v. Control Fluidics, Inc. , 834 F.2d 869, 872-73 (10th
Cir. 1987). We review such a sanction generally for abuse of discretion, see
7 Gocolay , 968 F.2d at 1020, but we assess any supporting factual findings under
the clear error standard, see Olcott v. Delaware Flood Co. , 76 F.3d 1538, 1557
8 (10th Cir. 1996). Thus, while we gauge the appropriateness of the sanction by
reference to the totality of the surrounding circumstances, see id. , we must first
9 determine that sufficient evidence establishes the specific instance(s) of willful
noncompliance on which the sanction is based, compare Toma v. City of
10 Weatherford , 846 F.2d 58, 60-61 (10th Cir. 1988) (reversing dismissal where
record did not support finding that sanctioned noncompliance was willful) with
11 Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992) (affirming dismissal
where finding of willful misconduct was "not clearly erroneous").
12 Defendant contends that the district court never made the requisite finding of
willful noncompliance and, moreover, that the record is insufficient to support
13 such a finding in any event. Both of these contentions have merit. Absent a finding
of willfulness to support dismissal or default, "reversal is required." Gocolay , 968
14 F.2d at 1021.
Furthermore, the scant evidentiary record regarding defendant's medical
15 condition would not warrant a finding that his failure to appear for the ordered
deposition was willful. Documentation from his treating physicians in Indonesia,
16 though short on specifics, showed that he had been hospitalized at least three times
during the previous year and a half, twice in very close proximity to the pertinent
17 time-frame (once in mid-July and once in mid-September 1996). See App. II at
473-75, 513. It also indicated that in between the latter hospitalizations defendant
18 remained under "treatment/medication" and "in need of total rest." Id. at 549.
The situation depicted in these materials certainly does not reflect willful
19 noncompliance in connection with defendant's failure to travel halfway round the
globe for his deposition. Cf. Gocolay , 968 F.2d at 1021 (reversing dismissal and
20 citing similar medical evidence which "suggest[ed] [the sanctioned party] did not
fabricate his health claims to avoid [his] deposition"). Myles v. Sapta 139 F.3d 912
21 (10th Cir 1997)
22 Excusable neglect is a general equitable concept, not necessarily reserved for
extraordinary circumstances, and takes account of factors such as prejudice, the
23 length of the delay and impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the movant, and whether
24 the movant acted in good faith. parties. Ashford v. Steuart, 657 F.2d 1053, 1055
(9th Cir. 1981) (per curiam).
25
A defendant's or her counsel's physical or mental illness is a common ground for
26 finding conduct non-culpable when considering whether to lift a [default]
judgment or overturn the failure to lift a [default] judgment. TCI Group Life
27 Insurance Plan v. Knoebber supra. The court of appeals has admonished that, as
a general matter Rule 60(b) is remedial in nature and . . . must be liberally applied
28 TCI Group Life Insurance Plan v. Knoebber supra.

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 1
2
3
A defendant's or her counsel's physical or mental illness is a common ground for
4 finding conduct non-culpable when considering whether to lift a default judgment
or overturn the failure to lift a default judgment. To be prejudicial, the setting
5 aside of a judgment must result in greater harm than simply delaying resolution
of the case. Rather, the standard is whether plaintiff's ability to pursue his claim
6 will be hindered. To be considered prejudicial, the delay must result in tangible
harm such as loss of evidence, increased difficulties of discovery, or greater
7 opportunity for fraud or collusion.
8 The defendant's or counsel's physical or mental illness is a common ground for
finding conduct non-culpable when considering whether to lift a [default]
9 judgment or overturn the failure to lift a [default] judgment. See, e.g., Leshore v.
County of Worcester, 945 F.2d 471 (1st Cir. 1991); Vac-Air, Inc. v. John Mohr &
10 Sons, Inc., 471 F.2d 231 (7th Cir. 1973); Rooks v. American Brass Co., 263 F.2d
166 (6th Cir. 1959) (per curiam); Tri-Continental Leasing Corp. v. Zimmerman,
11 485 F. Supp. 495, 497 (N.D. Cal. 1980). TCI Group Life Insurance Plan, L v.
Knoebber, 244 F.3d 691; 2001 U.S. App. LEXIS 8583; 49 Fed. R. Serv. 3d
12 (Callaghan) 140; 2001 Cal. Daily Op. Service 2376; 2001
13 [T]he court said: "No reason is apparent why excusable mistakes should not be
remedied on behalf of successful litigants as in case of those not successful. The
14 object to be attained is to do complete justice to all the parties. The right to remedy
mistakes is an inherent power with courts and this power extends to all parties to
15 actions." Dedrick v. Charrier (1906) 15 ND 515, 108 NW 38, 125 Am St Rep 608,
40 ALR 1127 "To be entitled to relief from a judgment in his favor, a party must
16 in some way be prejudiced by the judgment", 40 ALR 1127.
17 ...and the parties' neglect must be excusable. Pioneer Inv. Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed.
18 2d 74, 24 Bankr. Ct. Dec. (CRR) 63, 28 Collier Bankr. Cas. 2d (MB) 267, Bankr
L. Rep. (CCH) P 75157A, 25 Fed. R. Serv. 3d 401 (1993). Pioneer sets forth an
19 equitable "framework"for determining the question of excusable neglect in
particular cases, and the United States Court of Appeals for the Ninth Circuit will
20 ordinarily examine all of the circumstances involved rather than holding that any
single circumstance in isolation compels a particular result regardless of other
21 factors. "The determination of whether neglect is excusable is an equitable one
that depends on at least four factors: 1) the danger of prejudice to the other side;
22 2) the gravity of the neglect and its potential impact on the proceedings; 3) the
reason for the neglect ; and 4) whether the movant acted in good faith." Bateman
23 v. United States Postal Serv., 231 F.3d 1220 (9th cir 2000) citing Pioneer Inv.
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S. Ct.
24 1489, 123 L. Ed. 2d 74, 24 Bankr. Ct. Dec. (CRR) 63, 28 Collier Bankr. Cas. 2d
(MB) 267, Bankr L. Rep. (CCH) P 75157A, 25 Fed. R. Serv. 3d 401 (1993), Barry
25 vs. Lindner, 75 P.3d 388; 2003 Nev. LEXIS 50
26 Movant hereby moves this Court in good faith. Plaintiff has medical reasons that go beyond his
27 control. He gets forgetful and easily confused in high pressure situations as explained by Dr. John
28 N. Chappel. A valid excuse are ones of medical reasons. It doesn't even have to go as far as being

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 1 medical. One case held that a movant could set aside judgement based on excusable neglect because
2 she was grieving and moving her residence at the time TCI Group Life Insurance Plan, L v.
3 Knoebber, 244 F.3d 691; 2001 U.S. App. LEXIS 8583; 49 Fed. R. Serv. 3d (Callaghan) 140; 2001
4 Cal. Daily Op. Service 2376; 2001
5 When counsel (or pro se party)attests that his dysfunction in the case was due to
medicinal impairment and/or substance abuse, that is substantial reason to have
6 a judgment vacated. Leslie v. ICA 198 F.3d 1152; 1999 U.S. App. LEXIS 31932;
45 fed R. Serv. 3d (Callaghan)920;99Cal Daily Op. Service 9515; 99 Daily Journal
7 DAR12323. In Falk v. Allen, 739 F2d 461; 1984 U.S. App. LEXIS 19906; 39 Fed.
R. Serv. 2d(Callaghan) 901, the trial court was overturned because Allen went to
8 Korea for medical treatment and hence did not reply to the complaint against her.
Allen's conduct was non-culpable and the default judgment against her was
9 reversed. Under Falk three factors should be evaluated in considering a motion
to reopen a [default] judgement under Rule 60(b): 1) whether the Plaintiff
10 [defendant] will be prejudiced; 2) whether the defendant [plaintiff] has a
meritorious defense, and 3) whether the culpable conduct of the defendant
11 [plaintiff] led to the default [judgment]
12 The defendant's or counsel's physical or mental illness is a common ground for
finding conduct non-culpable when considering whether to lift a [default]
13 judgment or overturn the failure to lift a [default] judgment. See, e.g., Leshore v.
County of Worcester, 945 F.2d 471 (1st Cir. 1991); Vac-Air, Inc. v. John Mohr &
14 Sons, Inc., 471 F.2d 231 (7th Cir. 1973); Rooks v. American Brass Co., 263 F.2d
166 (6th Cir. 1959) (per curiam); Tri-Continental Leasing Corp. v. Zimmerman,
15 485 F. Supp. 495, 497 (N.D. Cal. 1980).TCI Group Life Insurance Plan, L v.
Knoebber, 244 F.3d 691; 2001 U.S. App. LEXIS 8583; 49 Fed. R. Serv. 3d
16 (Callaghan) 140; 2001 Cal. Daily Op. Service 2376; 2001
17 SANCTIONS AGAINST OPPOSING COUNSEL PURSUANT TO 60(B)(3) AND THE
ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY
18
Rule 172 Candor Toward the Tribunal
19
[4] In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
20
lawyer which will enable the tribunal to make an informed decision, whether or not the facts are
21
adverse.
22
Mr. Kealy appeared at the Case Management Conference on January 18th, 2007. He provided
23
documentation and correspondence he had received from Plaintiffs. However he intentionally failed
24
to provide a complete history of the documentation and correspondence as shown in Plaintiffs’
25
exhibits. Mr. Kealy also failed to note for the court the fact that Plaintiffs had responded to the
26
mandatary disclosure requirements and the proposed Discovery Plan prior to action being taken on
27
behalf of his client (see exhibit “2"). This omission falsely led the Court to believe that Plaintiffs
28

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 1 were non-compliant with all discovery matters. Additionally the omission of the documentation and
2 correspondence carried on between Plaintiffs and defendants counsel could only lead the Court to
3 believe that Plaintiffs were refusing to comply with court orders and thus appeared to be
4 contemptuous of the Court. This may be the basis for the extreme sanctions imposed by the Court
5 on Plaintiffs. Clearly the Aba Model Code of Professional Responsibility cited above requires all
6 members of the ABA to be completely candid with the Court and to provide information to the Court
7 which may not always be in the best interest of their client(s).
8 Rule 173 Fairness to Opposing Party and Counsel
9 A lawyer shall not:
10 [1] Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal
11 a document or other material having potential evidentiary value. A lawyer shall not counsel or
12 assist another person to do any such act;
13 Mr. Kealy concealed from the Court all documentation and correspondence between the parties
14 which showed an ongoing effort by the Plaintiffs to keep Mr. Kealy apprized of the unfortunate
15 results from the accident suffered by the Plaintiff Hiawatha Hoeft-Ross. If Mr Kealy had notified the
16 Court of the information in his possession the Court would have been in a better position to act in
17 a manner consistent with the long established case law involving medical disabilities which
18 constitute excusable neglect. Mr. Kealy was fully aware that Plaintiff Hiawatha Hoeft-Ross was
19 under medical orders to not engage in any “legal conflict.”
20 [4] In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort
21 to comply with a legally proper discovery request by an opposing party;
22 Mr. Kealy was dilatory in corresponding with plaintiffs and in several instances ignored discovery
23 requests outside of the purview of this Court as required by the FRCP: the movant (Plaintiffs) have
24 in good faith conferred or attempted to confer with other affected parties in an effort to resolve the
25 dispute without court action, or failing to file a motion to compel, whereas Mr. Kealy has been
26 totally unamenable to negotiation which would avoid consuming the time of the Court. As Plaintiff
27 states in exhibit 15A-C on December 4th, 2006, in response to Mr. Kealy’s letter of November 28th,
28 2006 (exhibit 14), “Since you appear unwilling to stipulate to indefinite continuance or stabilization

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 1 of Mr. Hoeft-Ross’ medical conditions, we will prepare a motion before the court. We regret that we
2 cannot stipulate to an agreement without intervention of the court.”
3 Mr. Kealy placed additional stress on Plaintiff Hiawatha Hoeft-Ross by offering a settlement
4 contingent upon Plaintiff Hiawatha Hoeft-Ross obtaining a medical release or he faced with
5 defending a motion for summary judgement. (See exhibit “14").
6 60(B)(3)
7 60(b)(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
8 misconduct of an adverse party.
9 Plaintiff contends that he was taken advantage of because of mental problems: "where it appears that
10 the other party was guilty of fraud (60)(b)(3) or bad faith or imposed upon the infirm party by taking
11 advantage of his infirmity to secure from him a contract or a conveyance which he otherwise would
12 not have executed , the contract or conveyance may be set aside." 37 Am Jur 2d § 13.
13 Rule 60(b)(3) allows relief if there was fraud, misrepresentation, or other misconduct of an adverse
14 party. Relief is only available under Rule 60(b)(3) where the party’s misconduct prevented the
15 [moving] party from fully and fairly presenting its case. Planned Parenthood v. Janklow, 2003 DSD
16 2.
17 MOTION TO EXTEND TIME OF DISCOVERY
18 This is an exceptional circumstance, where Mr. Hoeft-Ross did not foresee the sudden intensity of
19 his medical condition and that the circumstances present are clearly beyond the control of the
20 litigant. Huzar v Greate Bay Hotel & Casino Inc. 375 N.J. Super 463, 868 A2d 364. The decision
21 whether to grant a motion for extension of time lies within the broad discretion of the court and will
22 be reversed on appeal only for an abuse of discretion. Miller v. Lint (1980), 62 Ohio St.2d 209. An
23 abuse of discretion connotes more than an error of law or judgement; it implies that the court's
24 attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
25 St.3d 217, 219. For the court to proceed with a case management conference would be
26 unconscionable because of the fact that Mr. Hoeft-Ross is presently medically and mentally unstable
27 and would not be able to fully participate in the Conference. The parties have yet to meet and confer
28 and no discovery has been held at this time. Accordingly the plaintiffs motion for an enlargement

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 1 of time should be granted. Glover v. Haferman 2006 WL 1388753 (E.D. Wis). See also Myles v.
2 Sapta supra. Mr. Kealy himself states in his Proposed Discovery plan of September 8th, 2006, that
3 “Defendants believe that the mere volume of the complaint, the difficulties experienced in
4 scheduling the meet and confer, some communication problems among the parties, and the
5 representation of plaintiffs of a medical condition currently impairing Plaintiff Hiawatha Hoeft-Ross,
6 requires special scheduling , as this matter likely cannot be completed within the time periods
7 provided by the rules.”
8
9 REQUEST FOR JUDICIAL NOTICE
10 Pursuant to Fed.R.Evid. 201 Plaintiff Hiawatha Hoeft-Ross requests this court to take judicial notice
11 of the following facts:
12 1) Defendant Ernestine Montgomery and Cornelius Montgomery were named as
13 defendants in an action based on Ankenbrandt v. Richards 504 U.S. 689 (1992).
14 Filed in this Court in the District of Nevada, Civil Action CV-N-02-0160-HDM-
15 VPC.
16 2) Defendants’ counsel Jeralyn Spradlin submitted Hiawatha Hoeft-Ross’ extensive
17 medical findings to the court in a motion (exhibit unknown).
18 3) Valerie P. Cooke read the report and took notice of it.
19 4) Plaintiff Hiawatha Hoeft-Ross hereby asks this court to take judicial notice of the
20 medical report file by the defendants in case no. CV-N-02-0160-HDM-VPC.
21 Courts are presumed to be no more ignorant than the public generally, and will take judicial notice
22 of that which is generally known to be true. The medical report is not sealed and is public record in
23 the above named case CV-N-02-0160-HDM-VPC and is still available to this Court.
24
25 CONCLUSION
26 60(B) MOTION
27 It has been well established that excusable neglect is one of the foundations for a court to use in
28 remedying a decision which prejudices a participant their right to justice by reviewing and reversing

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 1 judgement which deny the participant a fundamental right. In order to avoid further complications
2 due to Plaintiff Hiawatha Hoeft-Ross’ current inability to address legal proceedings in a
3 knowledgeable fashion, it would appear that all legal proceedings in abeyance until such time as
4 Plaintiff Hiawatha Hoeft-Ross’ conditions are found to be sufficiently stabilized.
5 The plaintiff has provided this Court with substantial documentation to demonstrate that the failure
6 of Plaintiff to appear at the Scheduling Conference was due to a medical disability arising from an
7 accident which exacerbated a pre-existing condition and medical orders to not participate in any legal
8 proceeding until the medical condition is stabilized. The court has pre-existing knowledge of the
9 medical conditions of the Plaintiff and should recognize the problems that would arise from
10 proceeding against medical advice. As an example, in the Ross v. Montgomery case ( CV-N-02-
11 0160-HDM-VPC ) Plaintiff Hiawatha hoeft-Ross forgot to take his medication and stipulated by
12 mistake to something he was not aware he stipulated to, which resulted in prolonged litigation.
13 Therefore Plaintiff Hiawatha Hoeft-Ross requests that the orders made at the Scheduling Conference
14 held January 18th, 2007, be voided.
15
16 SANCTIONS AGAINST OPPOSING COUNSEL PURSUANT TO 60(B)(3) AND THE
ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY
17
18 The actions of Mr. Kealy both of omission and commission by failing to provide the court with a
19 complete history of this matter and his blatant lack of candor to the Court are sufficiently egregious
20 to warrant sanctions. The magnitude of his failure to be candid has left the Court blindfolded and
21 unable to properly schedule this action. Due to Mr. Kealy’s failure to communicate of his awareness
22 of the medical situation, Plaintiffs have been severely prejudiced.
23
24 MOTION TO EXTEND TIME OF DISCOVERY
25 Plaintiff Hiawatha Hoeft-Ross requests that the Scheduling Conference be set to be heard 180 (one
26 hundred and eighty) days from February 15th, 2007. Plaintiff suggests that he provide a monthly
27 report from his physician as to his medical status. Plaintiff acknowledges that he may not be
28 sufficiently stabilized to proceed at that time but he sets forth proposal in good faith with the hope

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 1 that he will be stabilized earlier and medically released so that he may proceed. Plaintiff would like
2 the Court to take note of Tamburina v. Combined Insurance Company of America, 2007 WL
3 259825 (Cal.App. 3 Dist.) wherein, “Parties’ stipulation to continue trial date due to plaintiff and his
4 counsel’s illness were sufficient to demonstrate 424-day period of impracticability, as required to
5 support impracticability tolling exception to application of five-year limit on bringing a case to trial;
6 stipulations were specific regarding severity of illnesses, their extent and duration, and necessity of
7 surgery in both cases.” West’s Ann.Cal.C.C.P. §§ 583.310, 583.340(c).
8
9 REQUEST FOR JUDICIAL NOTICE
10 Plaintiff hereby requests this honorable Court to take Judicial notice pursuant to Fed.R.Evid. 201
11 regarding Ross v. Montgomery Case No. CV-N-02-0160-HDM-VPC of the medical report therein
12 that is of public record and a foundation for the ongoing medical conditions of Plaintiff Hiawatha
13 Hoeft-Ross in this matter.
14
15 PRAYER FOR RELIEF
16 WHEREFORE Plaintiff prays for the following relief:
17 1) That the findings of Scheduling Conference be altered to reflect the following:
18 A. that the sanctions against Plaintiffs be set aside,
19 B. that discovery be granted to Plaintiffs,
20 C. that Plaintiffs do not waive any right to extensions or revisions pursuant
21 to LR26-1 and Fed.R.Civ.P. 26 and;
22 D. that the deadlines contained in the order will be invalidated.
23 2) That the Court sanction Opposing Counsel as it deems appropriate;
24 3) That the Court grant an extension of 180 (one-hundred and eighty) days or until a
25 medical finding has been made that plaintiff Hiawatha Hoeft-Ross’ conditions are
26 sufficiently stabilized;
27 4) That the Court take Judicial Notice of Plaintiffs medical records pursuant to FRE 201
28 of Case No. CV-N-02-0160-HDM-VPC as the basis for Plaintiff Hiawatha Hoeft-

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 1 Ross’ medical conditions;
2 5) Whatever the Court deems appropriate.
3
4
5
6 Respectfully Submitted,
7
8
9
10 ____________________________
11 Hiawatha Hoeft-Ross
12 DATED February 12th, 2007
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 1
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5
6 PROOF OF SERVICE BY MAIL
7 Pursuant to FRCP 5(b), I certify that, I on February 12, 2007, I deposited in the U.S. Mail at Reno,
8 Nevada, in a sealed envelope, a 60(B) MOTION, SANCTIONS AGAINST OPPOSING
9 COUNSEL PURSUANT TO 60(B)(3) AND THE ABA MODEL CODE OF PROFESSIONAL
10 RESPONSIBILITY, MOTION TO EXTEND TIME OF DISCOVERY, and a REQUEST FOR
11 JUDICIAL NOTICE and Points and Authorities in support of motion included therein and the
12 declaration in support motions of Hiawatha Hoeft-Ross, and attachments; a true and correct copy
13 postage prepaid thereon, addressed to:
14
Michael Kealy
15 50 West Liberty Street Suite 750
Reno, NV 89501
16
17
18 _____________________________
19 Monica Hoeft-Ross
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