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James Alan Bush 650 South Fifth Street San Jose, California 95110 (408) 791-4866 theoknock@gmail.com Plaintiff in pro per

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

JAMES ALAN BUSH, Plaintiff, vs. SAN JOSE POLICE OFFICER MIGUEL FLORES (#3881), Defendant.

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Case No.: 09-CV-01024 RS MOTION FOR RELIEF [Fed. R. Civ. P. 60(b),(c)] Date: Time: Department: Judge:

RELIEF SOUGHT COMES NOW, James Alan Bush, the plaintiff in the above-captioned matter, and hereby moves this Court to set aside its order granting the motion to withdrawal as counsel brought by Kaye Scholer LLC, which was entered into this action on April 6th, 2012. GROUNDS FOR RELIEF Plaintiff should be granted the relief requested herein because: //
-1MOTION FOR RELIEF

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1. Kaye Scholer LLC did not give proper notice of this motion to the plaintiff, so that the failure to oppose the motion was due to surprise and excusable neglect and the fraud and or misrepresentation of Kaye Scholer LLC. As is more fully explained in the declaration of the plaintiff: (a) The principle issue is whether the plaintiff was denied the opportunity and right to oppose the motion to withdrawal as counsel brought by Kaye Scholer LLC. Pursuant to the agreement reached by the parties upon noticing of the intent of Kaye Scholer LLC to move for withdrawal as counsel, the parties had agreed that a hearing would be held in this Court on this motion; the parties did not jointly stipulate to a shortening of time of the hearing date. (b) It was the clear understanding of Kaye Scholer LLC that no further action would take place with respect to the withdrawal as counsel until a hearing could be scheduled on the related motion no less than the 35-day time period prescribed by Civil Local Rule 7-2, and as made clear by the affidavits of Peter Ross and Marissa Armanino Williams, which state that the plaintiff intended to oppose the motion to withdrawal as counsel. In fact, prior to making this motion, Kaye Scholer LLC contacted the plaintiff and requested that the parties stipulate and agree to a shortening of time; however, the plaintiff was unable to attend a hearing on the two dates proposed by Kaye Scholer LLC due to prior court commitments in the San Jose Division of this Court and in the Superior Court of California. Plaintiff demonstrated this to Kaye Scholer LLC using the respective publicly available court calendars online, and it was understood between the parties at that time that a shortening of time was not possible. (c) Contrary to the understanding just described, Kaye Scholer LLC requested a hearing on the motion, even though only 16 days had elapsed since notice of the motion was given
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to the plaintiff on March 27th, 2012. The court granted the motion on April 6th, 2012, even though the notice, which was readily available to the court at the time of its consideration of said motion, clearly indicated that a hearing on the motion would be held on April 12th, 2012. (d) All of these occurrences took place in the absence of a stipulation to a shortening of time or notice of such a motion requesting the shortening of time, and in derivation of the plaintiffs expressed intent to oppose the motion at a hearing in open court no sooner than 35 days after noticing. (e) Despite the technical correctness of service of the notice of the motion, the plaintiff did not receive actual notice because Kaye Scholer LLC indicated that the motion would be heard on April 12th, 2012, when, in fact, it was heard on April 6th, 2012; moreover, the address to which the notices were sent is not the plaintiff's address, even though the plaintiff's address was up-to-date in the court records. (f) Under these circumstances more carefully detailed in the declaration of the plaintiff, it is clear that the failure to make a response to this motion was excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure. 2. Plaintiff has a good and valid defense to any more specific claims that may be set out by Kaye Scholer LLC in a hearing on a motion to withdrawal as counsel for plaintiff. As more fully argued in the supporting declaration of the plaintiff, the plaintiff can readily demonstrate using the correspondence by e-mails and transcripts of phone calls and inperson interviews between the parties that Kaye Scholer LLC has fabricated a cause to unduly sever the attorney-client relationship, specifically, that the relationship had become unworkable. These e-mails, phone calls, and interviews will demonstrate that the plaintiff not only conducted himself in a professional manner at all times, but clearly communicated
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reasonable expectations, and that, by the plaintiff having fulfilled his obligation to actively prosecute his case by and through appropriate and frequent communication with his counsel, Kaye Scholer LLC was given adequate opportunity to raise any issues that it may have perceived as problematic at any time in the eight months that Kaye Scholer LLC represented the plaintiff in this case. These records of communication will show further that Kaye Scholer LLC never raised any issues it may have had with the plaintiff in that time period, just as the motion to withdrawal as counsel does not raise any specific issues now. In sum, the plaintiff will prove a a clear case of abandonment by counsel, as well as negligent misrepresentation on the part of Kaye Scholer LLC. [Kaye Scholer did absolutely no relevant work on this case...] Even while claiming that the plaintiff was not providing information or documents that were needed (documents and information that the plaintiff will demonstrate that he repeatedly supplied), and showed records demonstrating that he provided, the requested information, even when, technically, the requested information was not even stop-gap in nature; insodoing, Kaye Scholer left the plaintiff with no apparent choice other than to conduct legal work on his own where such work was the clear duty of Kaye Scholer, which he was incapable of doing when such work required filing of papers and the like]...[During its tenure, Kaye Scholer LLP owed a duty to the plaintiff to preserve the issue of the causation of the plaintiff's injuries by timely acquiring medical data ]. NOTE TO SELF: I am listing the ways Kaye Scholer breached its duty to me to explain any characteristic of phone calls or e-mails that Kaye Scholer may twist into a proof point that doesn't meet the facts; so, use these in a way as not to air your grievances about their representation, but the reasons for my actions, which consists of mostly repeated follow-up calls and e-mail, in which the same issues are sometimes raised due to

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Kaye Scholer's failure to address them as agreed up or as is owed me by and through their duty as counsel. 3. There was no undue delay in bringing this motion, in that it was brought under Rule 60(b) (3) for fraud, misrepresentation or misconduct by an opposing party, and was made no more than a year after the entry of the judgment or order or the date of the proceeding. [Fed. R. Civ. P. 60(c)(1)] In addition, this motion was brought within a reasonable time, within the meaning of Rule 60(c), in that it was brought within the 35-day time period prescribed by Civil Local Rule 7-2 for hearing motions in this Court, and, in particular the hearing that is the subject of this motion. 4. Furthermore, Kaye Scholer LLC will not be unduly prejudiced if the court sets aside the order granting the motion to withdrawal as counsel and allows a hearing on the merits of the aforesaid motion. RELIEF SOUGHT This motion is based on the attached declaration and its exhibits, on the memorandum of points and authorities served and filed herewith, and on the papers and records already on file in this case, and, in particular: 1. Order Granting Kaye Scholer LLPs Motion to Withdrawal as Counsel for Plaintiff; 2. Letter to Judge Seeborg in re Order Granting Kaye Scholer LLCs Motion to Withdrawal as Counsel; 3. Kaye Scholer LLCs Notice of Motion and Motion to Withdraw as Counsel for Plaintiff; Memorandum of Points And Authorities In Support Thereof; Declaration of Peter Root in Support of Kaye Scholer LLC's Motion to Withdraw as Counsel for Plaintiff; Declaration of Marisa Williams in Support of Kaye Scholer LLCs Motion to Withdraw as Counsel for Plaintiff; and, [Proposed] Order Granting Kaye Scholer LLCs Motion to Withdraw as
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Counsel for Plaintiff; and, 4. Kaye Scholer LLCs Motion to Shorten Time for Hearing Motion to Withdraw as Counsel for Plaintiff; Declaration of Marisa Williams in Support of Kaye Scholer LLCs Motion to Shorten Time for Hearing on Motion to Withdraw as Counsel for Plaintiff; and, the [Proposed] Order Granting Kaye Scholer LLCs Motion to Shorten Time for Hearing Motion to Withdraw as Counsel for Plaintiff. DATED: Wednesday, July 18th, 2012 James Alan Bush Plaintiff in pro per

-6MOTION FOR RELIEF

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