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MOTION FOR RELIEF FROM DISMISSAL - 1 CV 09-01024 (RS)
James Alan Bush
521 Century Drive
Campbell, California 95008
408-685-4049
theoknock@gmail.com

Plaintiff in pro per



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION


JAMES ALAN BUSH,
Plaintiff,
vs.
SAN JOSE POLICE OFFICER MIGUEL FLORES,
Defendant
Case No.: 09-CV-01024
MOTION FOR RELIEF FROM DISMISSAL

[Fed. R. Civ. P., Rule 60(b)]


James Alan Bush, Plaintiff, moves the court to set aside the order dismissing the action for failure to
show cause as to why this case should not be dismissed for failure to attend a scheduled case management
conference [Doc. No. 153], and to reset the case management conference.

GROUNDS FOR RELIEF
The order dismissing the action for failure to show cause as to why this case should not be dismissed
for failure to attend a scheduled case management conference should be set aside on the grounds of excusable
neglect and unintentional misconduct in that, at the time the notice setting the case management conference
was served, plaintiff was being held by the Santa Clara County Department of Correction as a pretrial
detainee; consequently, plaintiff did not receive the notice because it was inadvertently served at his former
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MOTION FOR RELIEF FROM DISMISSAL - 2 CV 09-01024 (RS)
address, so that plaintiff had no notice of the case management conference or the entry of the order
dismissing the action until June 18
th
, 2014, the date plaintiff was first able to review court records since his
release from custody:
1. Prior to July 7
th
, 2014, the date on which the notice was served [Doc. No. 144], plaintiff indicated a
change of address by letter on May 24
th
, 2014 [Doc. No. 143]; however, although having due notice
of the change and the expressed inability of the plaintiff to attend any case management
conferences until further notice, the clerk of the court attempted to mail the notice to plaintiff’s
former address.
2. Although plaintiff was, in this manner, deprived of any opportunity to attend the case management
conference or to reschedule it, plaintiff did intend to make arrangements to appear either by phone
or in person in spite of being in custody or at least request a stay in the case until his release.
3. No prejudice would result to defendant if the order were set aside.
4. Because the order was entered on October 4
th
, 2012, a time in which plaintiff was still in custody,
and because plaintiff was not released from custody until mid-2013, this motion could not be filed
within the one-year expiry set for Rule 60(b) motions for relief from involuntary dismissal;
however, this motion was made only two days after plaintiff first became aware of the notice
setting the case management conference, the order to show cause and the order of dismissal, the
minimum time needed to investigate the facts of the case and prepare the papers of the motion for
relief.
5. Furthermore, the court may grant relief for the excusable neglect and inadvertent misconduct on the
part of plaintiff and set aside the order under Rule 60(b)(3) of the Federal Rules of Civil Procedure
because any delay in filing the motion is due to the latent discovery by plaintiff of the notice and
order of dismissal, which is directly attributable to his being in-custody.

SUPPORTING DOCUMENTS
This motion is based on this document, the attached Notice of Motion, Certificate of Service, the
Declaration of Plaintiff and exhibits attached to it, the Supporting Memorandum of Law, all of the pleadings,
papers, and other records on file in this action, and whatever evidence and argument may be presented at the
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MOTION FOR RELIEF FROM DISMISSAL - 3 CV 09-01024 (RS)
hearing of this motion.

Dated this 19
th
of June, 2014.

James Alan Bush
Plaintiff in pro per

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