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Hiawatha Hoeft-RossMonica Hoeft-RossPO Box 6946(775)544-2721IN PRO SE

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

*****

Hiawatha Hoeft-Ross Et. Al.CASE NO. CV-N-05–0121 LRH(VPC)

Plaintiffs, MOTION FOR REVIEW BY THE DISTRICTCOURT OF OBJECTION TO MAGISTRATESDECISION REGARDING 60(B) MOTION

vs.

Werner and Christel Hoeft, Et Al.

Defendants._______________________________/

COMES NOW PLAINTIFFS HIAWATHA HOEFT-ROSS et al and moves this Honorable

Court to review the Magistrate’s order and/or judgement that was clearly erroneous and contrary to

law on the 60(b) motion which Plaintiffs submitted to this court to set aside judgement and/or order

of the 60(b) motion for excusable neglect predicated on multiple medical issues and the precedent

setting case of Pioneer Investment Services v. Brunswick 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; 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

101. Points and authorities are included within this motion.

This is a timely objection to the Magistrate’s ruling and therefore review is required U.S.W.

v. New Jersey Zinc Co., 828 F.2d 1001 (3 Cir 1987); Moores Federal Practice 72.11[1][a]. Therd

final order and/or judgement came from the Magistrate on April 10 , 2007 and the plaintiffs receivedth

the judgement and/or order on April 11 , 2007. th

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Plaintiffs would also like to have this Court take notice that this litigation is against Doctors’

orders and plaintiffs are responding to keep their claim alive and in compliance with Due Process.

This objection is done with the help of several persons in writing, research, copying and other misc

items that go along with writing and objections since plaintiff Hiawatha Hoeft-Ross is under

Doctors’ orders not to engage in court matters. Plaintiff Monica Hoeft-Ross is under a Doctor’s

supervision and is to avoid major stressors and receives medication to ameliorate the effects of

unavoidable stressors.

"This circuit has had a long rule of liberal construction of pleadings presented by pro-se

Litigants. "Abassi v. INS. 2002 WL 31103-27 (9th Cir), 305 F.3d 1028 Citing Garaux v. Pulley 739

F2d 437 (9th Cir 1984), Balistreri v. Pacifica Police Dept 901 F.2d 696 (9th Cir 1990). Pro se

litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical

procedural requirements. Haines v. Kerner, 404 U.S. 519 (1972), in which the U.S. Supreme Court

noted that pleadings drafted by pro-se litigants should be held to a less stringent standard than formal

pleadings drafted by lawyers.

FACTS

Plaintiff Hiawatha Hoeft-Ross has been on disability due to multiple symptomology due to

a closed head injury for about fifteen(15) years. These have included many diagnosis such as

schizophrenia, fibromyalgia, vertigo, cervical nerve degeneration among others. A list is available

in the exhibits of the 60(b) motion. Plaintiff Monica Hoeft-Ross has been diagnosed with severe

depression, Bipolar Disorder and PTSD for the last 6 years. The other plaintiffs are our children who

rely upon Hiawatha Hoeft-Ross to act as their counsel. At the onset of this litigation the physicians

attending Hiawatha Hoeft-Ross had reviewed his medical status and advised him that he was

stabilized enough to enter into this type of litigation. Since the onset of the litigation, there was an

exacerbation of his medical problems occurring during this litigation process and Hiawatha Hoeft-

Ross is still under observation for his various ailments by local physicians.

Unfortunately Hiawatha Hoeft-Ross was involved in an automobile accident on October 12 ,th

2006. As a result of this accident, Mr. Hoeft-Ross sustained injuries that substantially exacerbated

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his existing condition. Attending physicians found it necessary to involve various medical specialists

in their attempt to again stabilize Mr. Hoeft-Ross’ medical condition. Hiawatha Hoeft-Ross advised

defendants’ counsel Michael Kealy and the Court of this accident and the resulting ongoing medical

treatments on a regular basis. Mr Hoeft-Ross was ordered by his primary physician Dr. John N.

Chappel not to engage in any legal matters due to the potential exacerbation of his injuries and the

possibility of future heart attacks until his medical situation was sufficiently stabilized.

On the 18 of January, 2007, Mr Hiawatha Hoeft-Ross and his wife Mrs. Hoeft-Rossth

(plaintiffs) did not appear based on orders issued by John N. Chappel M.D. in a notice written to the

Honorable Valerie P. Cooke on November the 1 , 2006, that Plaintiff Hiawatha Hoeft-Ross hadst

forgotten to submit due to his ongoing memory problems ( exhibit 10A and 10B of the 60(b)

motion). Additionally, Mr. Michael Kealy counsel for the defendants was advised of Mr. Hiawatha

Hoeft-Ross’ medical condition. He was advised by mail on three separate occasions during the

months of November and December 2006 that Mr. Hoeft-Ross could not engage in any legal

decisions. Mr Kealy apparently did not believe Mr. Hoeft-Ross’ letters and stated he would be filing

a summary judgement request with the District Court immediately. Based on Mr. Kealy’s written

statements, Mr. Hoeft-Ross believed the hearing scheduled for the 18 of January 2007 had beenth

vacated since the Summary Judgement would preempt that hearing.

Plaintiffs did not know until they received the minutes of the court that there had been a

hearing on the 18 of January 2007, abrogating Plaintiffs substantial Due Process rights, whichth

Plaintiffs found to be a punishment in excess of the alleged wrongs committed. As soon as Plaintiffs

received these minutes, they promptly set up a 60(b) motion that took over 3 weeks to complete with

substantial assistance (declaration attached to 60(b) motion). The Court had stated that since

Plaintiffs were able to file a 16 page motion which included 109 exhibits, that plaintiffs were able

to litigate and did not do so at their own peril (see Minutes of the Court April 10 , 2007). The courtth

gave the Plaintiffs no other option. Plaintiffs were merely attempting to preserve their rights despite

physicians orders to the contrary regarding litigation. Apparently the magistrate did not either

believe or read the attached declaration.

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As of the date of this document, Mr. Hiawatha Hoeft-Ross continues to have severe problems

as evidenced by attachments “A” and “B” which are copies of a referral to a neurological specialist

who has scheduled additional procedures. Further decisions cannot be made by the specialist until

the results have been reviewed. Additionally Mr. Hoeft-Ross has been excused from Jury Duty due

to his vertigo and newly discovered sleep disorder as well.

ARGUMENT

A district judge reviewing a magistrates judge’s order on a non-dispositive matter must

modify or set aside any portion of that order that is clearly erroneous or contrary to law. Fed.R.Civ.P.

72(a); Weeks Stevedoring Co., v. Raymond Int’l Builders Inc., 174 F.R.D. 301, 303 (S.D.N.Y. 1991)

(district court may reverse magistrate judge’s decision on non-dispositive matter only if found to be

contrary to law).

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 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., 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 are "appropriate only in extreme circumstances; a case should, whenever possible, be

decided on the merits.”

The facts above indicate that the court did not liberally apply the 60(b) motion but rather

treated the matter as a judgement by default in that the court deprived the plaintiffs of all due process

rights and did not attempt to decide the case on the merits. Furthermore, the court stated the

plaintiffs were still liable for contempt of court sanctions which are not defined. This is clearly an

attempt to chill any further actions by the plaintiffs to regain the denied due process rights. In a

previous case the Magistrate Judge Valerie P. Cooke admonished Hiawatha Hoeft-Ross that he better

not file anymore lawsuits.

In light of due process concerns raised by the conclusive foreclosure of legal 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 context means a voluntary, intentional refusal to comply

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with a discovery order. See Gocolay v. New Mexico Fed. Sav. & Loan Ass'n , 968 F.2d 1017,

1020-21 (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 Gocolay , 968 F.2d at 1020.

It would appear that the court did not review the declaration attached to the 60(b) motion

which clearly states that the motion was prepared with the assistance of other individuals and

required over three weeks to prepare. To support such a severe set of sanctions without a hearing

to determine bad faith, willful non-compliance or some other set of facts showing unwillingness to

participate in discovery, is manifest injustice. It fails to comply with what established case law has

determined to be essential for the actions taken.

" We recognize that a somewhat delicate balance exists between the necessity for a trial judge to

exercise control and management over his/her courtroom and 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 the sanction of default was too harsh and that the default judgement

should be vacated. Vac-Air v. Mohr 471 F.2d 231(7th Cir 1973).

After receiving evidence and hearing testimony, the magistrate recommendedfinding against the respondent, and the district court accepted the recommendationwithout conducting its own evidentiary hearing. U.S. v. Raddatz No 79-8 SupremeCourt of the United States 447 U.S. 667; 100 S. Ct. 2406;65 L. Ed. 2d 424; 1980U.S. LEXIS 49.

The magistrate never took any testimony or conducted a hearing before making her findings.

She predicated her entire findings that “plaintiffs were able to participate in discovery and chose not

to do so” based on the fact that plaintiffs submitted the 60(b) motion. In so doing she ignored

multiple declarations by attending physicians that Plaintiff Hiawatha Hoeft-Ross was unable to

participate in court matters. All declarations were made under penalty of perjury and signed by a

prominent local physician.

RULES AND GOALS OF A 60(B) MOTION

Rule 60(b)(1) guides the balance between the overriding judicial goal of deciding issues

correctly, on the basis of their legal and factual merits with the interests of both litigants and the

courts in the finality of judgements. The factors that govern the lifting of entries of default under

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Fed.R.Civ.P. 55(c) are: whether the defendant’s [plaintiffs’] culpable conduct led to the default;

whether the defendant [plaintiffs have] has a meritorious defense; and whether reopening the default

judgement would prejudice the plaintiff [defendant].

Excusable neglect is a general equitable concept , not necessarily reserved for extraordinary

circumstances, and takes into account of factors such as prejudice, the length of the delay and impact

on judicial proceedings, the reason for the delay, including whether it was in the reasonable control

of the movant, and whether the movant acted in good faith. A showing of lack of culpability

sufficient to meet the Fed.R.Civ.P. 55(c) good cause standard is ordinarily sufficient to demonstrate

as well as the excusable neglect or mistake criteria under Fed.R.Civ.P. 60(b)(1), and there is

therefore no reason to require that those Rule 60(b)(1) Criteria be established separately. That is,

if a defendant’s [plaintiff’s] conduct was not culpable , then her [his] failure to respond to a lawsuit

is ordinarily excusable, and in the interests of substantial justice the better course may well be to

vacate the default judgement and decided the case on the merits. A defendants [plaintiffs] or his or

hers counsel’s physical or mental illness is a common ground for finding conduct non-culpable when

considering to lift a default judgement or overturn the failure to lift a default judgement. A

defendant [plaintiff] seeking to vacate a default judgement must present specific facts that would

constitute a meritorious defense, but the burden on a party seeking to vacate a default judgement in

not extraordinarily heavy.

To be prejudicial , the setting aside of a judgement must result in greater harm than simply

delaying resolution of the case. Rather, the standard is whether the plaintiff’s [defendants’] ability

to pursue his claim will be hindered. To be considered prejudicial, the result must result in tangible

harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud

or collusion.

Motions to vacate a default judgement... are cognizable under Fed.R.Civ.P. 60(b) .Rule

60(b)(1), the subsection here pertinent, grants District Courts discretion to relieve a party from a

judgement or order for reasons of “mistake, inadvertence, surprise, or excusable neglect.”As such,

Rule 60(b)(1) guides the balance between the overriding judicial goal of deciding cases correctly,

on the basis of their legal and factual merits, with the interest of both litigants and the courts in the

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finality of judgements. Pena v. Seguras La Comercial, 770F.2d 811,814 (9 Cir 1985).The Supremeth

Court has made it clear, that a 60(b)motion in the context of excusable neglect is an equitable one,

not necessarily reserved for extraordinary circumstances, and take into account of factors such as

prejudice, the 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 the movant acted

in good faith. Pioneer Investment Services v. Brunswick Associates Limited Partnership et.al. 507

U.S. 380 supra.; see Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9 Cir 1997) (holdingth

that the Pioneer Investment “excusable neglect” standard applies to Rule 60(b)(1). Pioneer

Investment made it clear that the word neglect encompasses simple faultless omissions to act and

more commonly omissions caused by carelessness [507 U.S. at 388]. In the first category, for

example, are situations where a party may choose to miss a deadline although for a very good reason,

such as to render first aid to an accident victim discovered on the way to the courthouse. Such an

omission is “intentional” in the usual sense of that term ; that is, it is the result of a conscious choice.

Nonetheless, it is “neglect”-- that is, “ giving little attention or respect” to the filing deadline in light

of other considerations, id.–and the question becomes whether that “neglect” is “excusable,” a

question answered, as we have noted in and as Pioneer Investment spells out, by considering a bevy

of equitable considerations. To suppose that the making of a conscious choice, without more,

precludes a finding that “neglect” cannot be squared with Pioneer Investment. TCI Group Life

Insurance Plan v. Knoebber ,244F.3d 691 (9th Cir 2001). Plaintiff Hiawatha Hoeft-Ross was ill and

under Doctors orders not engage in legal matters and his conduct was wholly non-culpable and

without willful noncompliance or bad faith. Plaintiff Monica Hoeft-Ross was also under severe

stress due to the litigation and not mentally able to attend a hearing on her own.

REQUEST FOR JUDICIAL NOTICE

Plaintiff hereby requests this honorable Court to take Judicial notice pursuant to Fed.R.Evid.

201 regarding Ross v. Montgomery Case No. CV-N-02-0160-HDM-VPC of the medical report

therein that is of public record and a foundation for the ongoing medical conditions of Plaintiff

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Hiawatha Hoeft-Ross in this matter. Valerie P. Cooke in her own capacity as Magistrate Judge read

the report and allowed it to be entered into evidence.

CONCLUSION

The magistrate judge clearly erred by not affording procedural due process when imposing

sanctions on [Simonici], who was not given notice that he might lose representation over his refusal

to file an ordered affidavit, and was not given an opportunity to present argument. Ninth Circuit law

does not permit a summary disqualification of counsel; for the court to sanction an attorney,

procedural due process requires notice and an opportunity to be heard. See Pac. Harbor Capital, Inc.,

v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9 Cir 2000)(“[A]n attorney subject to disciplineth

is entitled to procedural due process, including notice and an opportunity to be heard.”)( quoting

Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1198 (9th Cir 1999)): see also Martens v. Thomann,

273 F.3d 159,175 (2 Cir 2001)(“We have held that due process requires that the courts providend

notice and an opportunity to be heard before imposing any kind of sanctions.) [W]henever the district

court imposes sanctions on an attorney, it must at a minimum afford the attorney notice and an

opportunity to be heard. In the instant case, the district court did not give [Shonbrun] notice or an

opportunity to be heard prior to sanctioning him. Therefore the district court abused its discretion

in imposing the sanction Weissman v. Quail Lodge Inc supra. As cited in Cole v. United States

District Court For the District of Idaho 366 F.3d 813; 04 Cal. Daily Op. Serv. 3806. (9 Cir 2004)th

Plaintiffs as pro-ses are viewed as counsel held to a less stringent standard but are expected

to know the rules of the court as any counsel in the bar. Plaintiffs were denied notice and a hearing

for their non-compliance which in the Ninth Circuit is a denial of due process and is against the

rules.

As a general rule, if a petitioner does not seek reconsideration of a magistrate judge’s non-

dispositive order with the district court, when such review is available, the factor that looks at

whether the party seeking the relief has no other means of relief will not be affirmatively presented,

thus weighing heavily against granting a writ, but this general rule may give way to an exception if

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the petitioner can convincingly demonstrate that reconsideration by the district court would have

been futile. 28 U.S.C.A.§ 636 (b)(1)(A).

28 U.S.C.A.§ 636 (b)(1)(A). Provides:

[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before

the court, except a motion for injunctive relief, for judgement on the pleadings, for summary

judgement, to dismiss or quash and indictment or information made by the defendant, to suppress

evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for

failure to state a claim upon which relief can be granted, and to involuntary dismiss an action. A

judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been

shown that the magistrate judge’s order is clearly erroneous or contrary to law.

The Magistrate judge made a sua sponte judgement on the motion before her for a 60(b) set

aside without examining prevailing Supreme Court statutes and Ninth Circuit Case law. In the

ordinary course, the district courts , and not the courts of appeals, are to be called on, in the first

instance, to correct any clear error in the decision of a magistrate judge on non-dispositive matters,

for this is the role that congress has created for the district courts. Cole v. United States District

Court For the District of Idaho 366 F.3d 813 (9 Cir 2004) supra. In 28 U.S.C.A.§ 636 (b)(1)(A),th

Congress provided that a district court judge can designate a magistrate to hear and determine any

pretrial matter pending before the court , except certain dispositive motions. The sua sponte denial

of plaintiffs’ due process rights and the gutting of their case was 1) too harsh of a sanction for the

motion and supporting evidence submitted and 2) The magistrate judge did a dispositive motion on

the lack of discovery by the Plaintiffs without notice of hearing or due process as is required. Review

by the district court of the magistrates determination of these non-dispositive motions is on a clearly

erroneous standard.. U.S. v. Raddatz, No 79-8, Supreme Court of the United States, 447 U.S. 667,

supra. Under the statute -- which calls for a “de novo determination”, not a de novo hearing -- the

district court was not required to rehear the testimony on which the magistrate based her findings and

recommendations in order to make an independent evaluation of credibility. The Magistrate Judge

did not conduct any hearings on the motion, and Plaintiffs respectfully request a hearing on the 60(b)

motion with witnesses.

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The legislative history discloses that Congress purposely used the word determination rather

than hearing, believing that Art. III was satisfied if the ultimate adjudicatory determination was

reserved to the Art III officer, and that Congress intended to permit whatever reliance the judge , in

the exercise of sound judicial discretion, chose to place on the magistrates proposed findings and

recommendations. U.S. v. Raddatz, No 79-8, Supreme Court of the United States, 447 U.S. 667,

supra. See also North American Watch Corp., v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th

Cir 1986) Citing U.S. v. Raddatz, No 79-8, Supreme Court of the United States, 447 U.S. 667,

supra. See also Moores Federal Practice 72.11 [1][b].

WHEREFORE Plaintiffs pray for the following relief;

1) That the District Court find the Magistrate’s ruling on the 60(b) motion clearly

erroneous and contrary to law;

2) That the District Court finds that the Magistrate misinterpreted or misapplied the law;

3) That the findings of Scheduling Conference be altered to reflect the following:

A. that the sanctions against Plaintiffs be set aside,

B. that discovery be granted to Plaintiffs,

C. that Plaintiffs do not waive any right to extensions or revisions pursuant

to LR26-1 and Fed.R.Civ.P. 26 and;

D. that the deadlines contained in the order will be invalidated.

4) That judicial notice be reinstated;

5) That the Plaintiffs be heard before this honorable court with witnesses which were

denied by the Magistrate judge when she made her findings;

6) Whatever else the Court may deem appropriate.

Respectfully submittedDated:____________

__________________________

Hiawatha Hoeft-Ross

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__________________________

Monica Hoeft-RossPROOF OF SERVICE BY MAIL

Pursuant to FRCP 5(b), I certify that, I Monica Hoeft-Ross, on April______ , 2007, I deposited in

the U.S. Mail at Reno, Nevada, in a sealed envelope, a MOTION FOR REVIEW BY THE

DISTRICT COURT OF OBJECTION TO MAGISTRATES DECISION REGARDING 60(B)

MOTION and Points and Authorities in support of motion included therein and the declaration in

support motion of Hiawatha Hoeft-Ross, and attachments; a true and correct copy postage prepaid

thereon, addressed to:

Michael Kealy50 West Liberty Street Suite 750Reno, NV 89501

_____________________________

Monica Hoeft-Ross