Diamond Ella Carazos Rivas v. Wells Fargo Bank NA et al

Filing 20

ORDER DENYING PLAINTIFFS MOTION FOR RECONSIDERATION 16 by Judge Otis D. Wright, II . (lc). Modified on 9/16/2016 (lc).

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United States District Court
Central District of California

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DIAMOND CAVAZOS RIVAS,
Plaintiff,

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v.

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Case № 2:13-cv-03832-ODW(AJWx)

WELLS FARGO BANK, N.A., et al.

ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION [16]

Defendants.

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I.

INTRODUCTION

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On July 5, 2016, pro se Plaintiff Diamond Cavazos Rivas moved for

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reconsideration of the Court’s Order dismissing her Complaint without prejudice for

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lack of prosecution. The Court construes Plaintiff’s Motion as one for relief from

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judgment under Rule 60(b). For the reasons discussed below, the Court DENIES the

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Motion. (ECF No. 16.) 1

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II.

FACTUAL BACKGROUND

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On May 29, 2013, Plaintiff filed a Complaint against Defendant Wells Fargo

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Bank N.A., Wells Fargo Advisors LLC, Melissa Martinez Cresser, Sadie Tyler

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Sheperd, Linda Larsen, and Teresa Moseley. (ECF Nos. 1, 5.) Plaintiff, who was

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previously employed by Wells Fargo, alleges that she was subjected to repeated and

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After consider the moving papers, the Court deems the matter appropriate for decision without
oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.

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unwanted sexual advances by Cresser. (Compl. 1–4, ECF No. 5.) On June 10, 2013,

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the Court denied without prejudice Plaintiff’s request to proceed in forma pauperis

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(“IFP”) because she did not complete the IFP form. (ECF No. 2.) A month later,

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Plaintiff filed an amended IFP request, which the Court granted. (ECF Nos. 3–4.) On

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November 22, 2013, the Court ordered Plaintiff to show cause no later than December

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6, 2013, why the case should not be dismissed for lack of prosecution based on her

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failure to file proofs of service for any Defendant. (ECF No. 10.) On December 12,

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2013, after not receiving a response from Plaintiff, the Court dismissed the case

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without prejudice. (ECF No. 11.)

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In addition to the foregoing, Plaintiff also filed another action approximately

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two weeks after her initial IFP request was denied. (Complaint, Rivas v. Wells Fargo

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Bank, No. 2:13-cv-04626-JFW-VBK (C.D. Cal. Nov. 12, 2013), ECF No. 3 (“Rivas

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II”).) The Complaint in Rivas II made the exact same allegations against the same

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Defendants. (Id.) Rivas II was assigned to Judge Walter. Defendants Cresser,

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Shepherd, Larsen, and Mosley moved to dismiss Plaintiff’s Complaint in that case.

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(Rivas II, ECF No. 8.) On December 4, 2013, Judge Walter dismissed Rivas II

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without prejudice, on the basis that Plaintiff had previously filed an identical case that

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was still pending in this district. (Rivas II, ECF No. 12.)

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On December 16, 2013, Plaintiff moved in this matter for (1) reconsideration of

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the order dismissing the action for lack of prosecution, (2) an order extending the time

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in which to serve Defendants, and (3) to consolidate this matter with Rivas II. (ECF

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No. 12.) Plaintiff argued that she assumed that this matter was closed after her initial

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IFP request was denied, and thus she focused her attention solely on Rivas II—where

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she did serve at least the individual Defendants. (Id.) Based on this explanation, the

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Court granted the motion for reconsideration of the dismissal and the motion to extend

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time to serve Defendants. (ECF No. 13.) The Court thus reopened the case and

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extended the time in which Plaintiff could respond to the original order to show cause

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until January 14, 2014. (Id.) However, with the Rivas II matter closed, the Court

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denied the motion to consolidate. (Id.)

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On February 7, 2014, after Plaintiff once again failed to file any proofs of

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service or a response to the order to show cause, the Court dismissed the action

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without prejudice. (ECF No. 14.) Years later, on July 5, 2016, Plaintiff moved the

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Court to reconsider its dismissal. (ECF No. 16.) That Motion is now before the Court

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for consideration.

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III.

LEGAL STANDARD

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It has been over two years since the Court last dismissed the action, and thus

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this Motion should be treated not as one for reconsideration, but rather as one for

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relief from judgment under Rule 60(b). Am. Ironworks & Erectors, Inc. v. N. Am.

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Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001) (“[A] ‘motion for reconsideration’

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is treated as a motion to alter or amend judgment under Federal Rule of Civil

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Procedure Rule 59(e) if it is filed within [twenty-eight] days of entry of judgment.

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Otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order.”

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(citations omitted)).

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“On motion and just terms, the court may relieve a party or its legal

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representative from a final judgment, order, or proceeding for . . . (1) mistake,

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inadvertence, surprise, or excusable neglect . . . [or] (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b)(1), (b)(6). To evaluate whether to grant relief under

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subsection (b)(1), the Court examines four factors: “(1) the danger of prejudice to the

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opposing party; (2) the length of the delay and its potential impact on the proceedings;

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(3) the reason for the delay; and (4) whether the movant acted in good faith.” Lemoge

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v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009). However, these factors do not

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constitute “an exclusive list.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381–

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82 (9th Cir. 1997) (per curiam). In addition, a motion under Rule 60(b)(1) must be

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filed “no more than a year after the entry of the judgment or order or the date of the

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proceeding.” Fed. R. Civ. P. 60(c)(1).

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Subsection (b)(6), on the other hand, is a catch-all provision that is “used

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sparingly as an equitable remedy to prevent manifest injustice.” United States v.

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Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). “Rule 60(b)(6)

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relief normally will not be granted unless the moving party is able to show both injury

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and that circumstances beyond its control prevented timely action to protect its

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interests.” Id.

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IV.

DISCUSSION

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Plaintiff argues that Defendants’ responsive pleadings in Rivas II were

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sufficient to satisfy this Court’s original orders to show cause in this case. (Mot. 5,

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ECF No. 16.) She also states that, in December 2013, she “went under disability

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medical care by a license[d] physician due to [the] stress incurred by this pending case

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matter,” and that she has not returned to work since that time because of her stress.

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(Id. at 6.) Plaintiff appears to argue that this justifies the delay in filing this Motion.

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The Court disagrees with both arguments.

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As to the first argument, Plaintiff is simply incorrect. As was made clear to

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Plaintiff in the Court’s Order granting relief from the original dismissal, Plaintiff must

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serve Defendants with the Complaint in this action if she wishes to maintain it. (First

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Relief Order at 5, ECF No. 13 (“Rivas must file a proof of service on all defendants

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against whom she intends to proceed by January 14, 2014, or the court will once again

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dismiss the action for failure to prosecute and failure to follow court orders.”).) See

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Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A federal court is without

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personal jurisdiction over a defendant unless the defendant has been served in

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accordance with Fed. R. Civ. P. 4.”).

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Plaintiff’s second argument essentially seeks relief based on excusable neglect

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under Rule 60(b)(1). However, because this Motion was filed more than a year after

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dismissal of the action, it is barred under Rule 60(c)(1). But even if the Court

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construed the argument as one under Rule 60(b)(6), the Court would still not grant

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relief. Plaintiff has been aware of the dismissal in this action for almost two and a half

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years, and the Court is not persuaded that the “stress incurred by this pending case

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matter”—a matter which Plaintiff did virtually nothing to advance—was of such a

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degree that she was incapable of bringing this Motion at an earlier date. Alpine Land

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& Reservoir Co., 984 F.2d at 1049 (relief under Rule 60(b)(6) “is available only

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where extraordinary circumstances prevented a litigant from seeking earlier, more

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timely relief”).

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V.

For the foregoing reasons, the Court DENIES Plaintiff’s Motion. (ECF No.

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CONCLUSION

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IT IS SO ORDERED.

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September 16, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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