Ringgold et al v. Brown et al

Filing 119

ORDER signed by District Judge John A. Mendez on 5/18/17 ORDERING that plaintiff's 104 Motion to Vacate and for Other Relief is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NINA RINGGOLD, et al.,

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2:12-cv-00717-JAM-JFM

Plaintiffs,

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No.

v.

ORDER DENYING PLAINTIFF’S MOTION
TO VACATE AND FOR OTHER RELIEF

JERRY BROWN, et al.,

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Defendants.

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This matter is before the Court on Plaintiffs’ “Motion to

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Vacate for Disqualification and Intercircuit Assignment; and

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Other Relief.” 1

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Motion is denied.

For the reasons set forth below, Plaintiffs’

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I.

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PROCEDURAL BACKGROUND AND RELEVANT FILINGS

Plaintiffs are the Law Offices of Nina Ringgold and all

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current clients thereof.

Second Amended Complaint, ECF No. 72,

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at 1.

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prejudice, on January 22, 2013.

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Second Amended Complaint on February 13, 2013, and subsequently

This Court dismissed the First Amended Complaint, without
ECF No. 65.

Plaintiffs filed a

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for May 16, 2017.
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appealed the January dismissal, ECF No. 78.

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dismissed the appeal, taking effect February 4, 2014.

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91 & 92.

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Jerry Brown, Commission on Judicial Performance of the State of

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California, and Kamala Harris filed a Motion to Dismiss, which

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was followed by Defendant Elaine Howle’s Motion to Dismiss.

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Nos. 93 & 99.

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Court granted both Motions to Dismiss with prejudice after

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considering the merits of each.

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The Ninth Circuit
ECF Nos.

The case sat for a year and a half before Defendants

ECF

Plaintiffs did not file any Opposition and this

ECF No. 102 (Nov. 18, 2016).

On October 18, 2016—a full month before the Court dismissed

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the case—Plaintiffs filed a Request for Appointment of a Three-

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Judge Court.

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request, instructing Plaintiffs that a request to the Court by

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any party must be filed as a properly noticed and served motion

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with a hearing date.

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Request as the Court instructed.

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ECF No. 98.

Two days later the Court struck the

ECF No. 100.

Plaintiffs did not refile the

Plaintiffs subsequently filed the present Motion.

ECF No.

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104 (Dec. 16, 2016).

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No. 112 & 113.

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Plaintiffs filed a Declaration omitted from their Motion due to

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“an error in conversion” on May 10, 2017.

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Plaintiffs then filed their Reply, Request for Judicial Notice,

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Exhibits, and Opposition to Defendants’ Request for Judicial

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Notice on May 11, 2017.

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Defendants filed timely Oppositions.

ECF

Plaintiffs’ Reply was due May 9, 2017.

ECF No. 115.

ECF Nos. 116, 117, & 118.

“Not less than seven (7) days preceding the date of hearing,

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the moving party may serve and file a reply to any opposition

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filed by a responding party.”

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matter was set for May 16, 2017.

L. R. 230(d).

The hearing on this

Plaintiffs filed their Reply
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two days after the deadline, without seeking the Court’s leave

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for late filing.

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Plaintiffs’ Reply or accompanying documents.

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The Court, therefore, has not considered

The Court also declines to consider Plaintiffs’ late-filed

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Declaration.

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Plaintiffs’ Motion and does not add facts beyond those already

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included in the other Declaration and Exhibits that were

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submitted with the Motion.

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Plaintiffs’ Motion contains no citations to the missing

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The Declaration repeats the arguments in

See ECF Nos. 105 & 106.

Furthermore,

Declaration, but only cites the timely-filed Exhibits.

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II.

OPINION

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A.

Legal Standard

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Plaintiffs bring their motion to vacate under Federal Rules

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of Civil Procedure 52, 54, 59, and 60. 2

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request an order vacating the final judgment in this case,

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vacating all orders rendered by this assigned Judge,

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disqualifying this Court from deciding this case, and referring

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the case to the Chief Judge of the Circuit for the appointment of

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a three judge court.

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motion does not specifically seek additional findings or

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amendment of a Court order.

Mot. at 1.

Mot. at 6.

Plaintiffs

Apart from these requests, the

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Under Rule 52(b), a party may file a motion for amended or

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additional findings within 28 days after the entry of judgment.

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Upon such motion, the Court may amend its findings—or make

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All further references to Rules are to the Federal Rules of
Civil Procedure.
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additional findings—and may amend a judgment accordingly.

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permitted under Rule 52(a)(3), the Court granted Defendants’

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Motions to Dismiss, with prejudice, without stating findings or

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conclusions.

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they seek an order vacating that judgment, not an amended

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judgment or additional findings and conclusions.

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no authority indicating that Rule 52(b) is a vehicle for vacating

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the judgment or other orders in these circumstances.

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is inapplicable.

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ECF No. 102.

As is

Plaintiffs’ request makes plain that

Plaintiffs cite

Rule 52(b)

Plaintiffs also cite Rule 54(b) for the proposition that the

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Court may reconsider non-final judgments.

However, the Rule

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states that “any order or other decision, however designated,

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that adjudicates fewer than all the claims or the rights and

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liabilities of fewer than all the parties does not end the action

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as to any of the claims or parties and may be revised at any time

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before the entry of a judgment adjudicating all the claims and

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all the parties’ rights and liabilities.”

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(emphasis added).

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November 18, 2016.

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Plaintiffs the relief they seek.

Fed. R. Civ. P. 54(b)

The Court entered judgment by its Order on
Therefore, this rule cannot provide

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Rules 59 and 60 are more suited to Plaintiffs’ request.

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Under Rule 59(e), a party may file a motion to alter or amend the

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judgment within twenty-eight days of the judgment order.

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Plaintiffs filed their Motion twenty-eight days after judgment

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order and thus met the deadline.

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limited, however.

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or alter are not listed in [Rule 59(e)], the district court

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enjoys considerable discretion in granting or denying the

Relief under this Rule is

“Since specific grounds for a motion to amend

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motion.”

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Cir. 2011) (citation omitted).

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entry remains an extraordinary remedy which should be used

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sparingly.”

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general, there are four basic grounds upon which a Rule 59(e)

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motion may be granted: (1) if such motion is necessary to correct

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manifest errors of law or fact upon which the judgment rests;

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(2) if such motion is necessary to present newly discovered or

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previously unavailable evidence; (3) if such motion is necessary

Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th
“[A]mending a judgment after its

Id. (citation and quotation marks omitted).

“In

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to prevent manifest injustice; or (4) if the amendment is

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justified by an intervening change in controlling law.”

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motion “may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised

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earlier in the litigation.”

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (emphasis in original).

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Id.

The

Kona Enters., Inc. v. Estate of

Rule 60 also provides an avenue to challenge a final

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judgment or order.

“On motion and just terms, the court may

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relieve a party or its legal representative from a final

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judgment, order, or proceeding for . . . (1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence that, with reasonable diligence, could not

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have been discovered in time to move for a new trial under Rule

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59(b); (3) fraud (whether previously called intrinsic or

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extrinsic), misrepresentation, or misconduct by an opposing

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party; (4) the judgment is void; (5) the judgment has been

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satisfied, released or discharged; it is based on an earlier

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judgment that has been reversed or vacated; or applying it

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prospectively is no longer equitable; or (6) any other reason
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that justifies relief.”

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delineating the “Legal Standard,” but only specifically reference

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Rule 60 (b)(5) and (6) in their argument; even then, Plaintiffs

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only provide a legal basis for vacating judgment under Rule

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60(b)(6).

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apply in this case and the Court does not discern a basis for

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vacating under that subsection.

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the merits only under Rule 60(b)(6).

Plaintiffs cite Rule 60(b) broadly in

Plaintiffs do not explain how Rule 60(b)(5) would

This Order, therefore, evaluates

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B.

Analysis

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Plaintiffs ask the Court to vacate its final judgment in

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this case because the assigned Judge should be disqualified under

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28 U.S.C. § 455 and because the Court lacked authority to strike

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Plaintiffs’ request for a three judge court.

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1.

Disqualification

Federal law provides two means by which a judge may be

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disqualified from a case.

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an “affidavit that the judge before whom the matter is pending

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has a personal bias or prejudice either against him or in favor

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of any adverse party[.]”

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then the motion must be referred to another judge to determine

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the merits.

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obligation on the judge sitting on the case to recuse himself in

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any proceeding in which his impartiality might reasonably be

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questioned or if he is aware of grounds for recusal under

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§ 455(b), whether or not a party files an affidavit.

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Sibla, 624 F.2d 864, 868 (1980).

Id.

Under 28 U.S.C. § 144 a party may file

If the affidavit is legally sufficient

In contrast, 28 U.S.C. § 455 imposes an

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U.S. v.

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Plaintiffs make their motion under § 455 and not § 144.

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Thus, Plaintiffs are not entitled to have the matter referred to

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a different judge, see Sibla, 624 F.2d at 868, much less the

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intercircuit panel Plaintiffs request, Mot. at 8.

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Plaintiffs’ motion should “prompt the judge to whom the motion is

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directed to determine independently whether all the circumstances

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call for recusal under the self-enforcing provisions of § 455(a)

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& (b)(1), a matter which rests within the sound discretion of the

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judge.”

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Still,

Id. at 868.

Although § 455 does not authorize the reopening of closed

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litigation, a court may vacate judgment for a violation of

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§ 455(a) under the procedure provided by Rule 60(b).

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v. Health Serv. Acquisition Corp., 486 U.S. 847, 863 (1988).

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Supreme Court has determined that Rule 60(b)(6), in particular,

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may provide an appropriate remedy for such violations.

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863–64.

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enable them to vacate judgments whenever such action is

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appropriate to accomplish justice,” but it “should only be

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applied in extraordinary circumstances.”

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quotation marks omitted).

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should be vacated for a violation of § 455(a), it is appropriate

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to consider the risk of injustice to the parties in the

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particular case, the risk that the denial of relief will produce

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injustice in other cases, and the risk of undermining the

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public’s confidence in the judicial process.”

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Liljeberg
The

Id. at

The Rule “provides courts with authority adequate to

Id. (citations and

“[I]n determining whether a judgment

Id. at 864.

Defendant Howle argues that this motion is untimely because

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Plaintiffs could have raised the issue prior to judgment.

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Howle Opp. at 6.

See

The Court is also skeptical of Plaintiffs’
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ignorance of the facts now raised.

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for Appointment of a Three Judge Court demonstrates that they

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were concerned that “a substantial number of federal judges in

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this court and Circuit have direct financial and general

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interests in the case due to the fact that they were former state

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judges.”

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month before entry of judgment.

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they were not under a duty to investigate the Judge’s background,

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they do not attest that they were not aware of this Court’s

ECF No. 98 at 2.

Indeed, Plaintiffs’ Request

Plaintiffs filed that request a full
Although Plaintiffs argue that

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former employment prior to entry of judgment. 3

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this Court takes its responsibility under § 455(a) seriously, it

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will address Plaintiffs’ concern irrespective of timeliness.

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Recusal is not warranted or appropriate.

However, because

Neither this Judge

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nor his family has an interest, financial or otherwise, in the

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outcome of the litigation.

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contrary, this Judge is no longer employed by or receiving

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benefits from the Superior Court of California and/or Sacramento

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County and has not for a number of years. This Judge resigned

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from the Sacramento County Superior Court in April, 2008 upon his

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appointment to this Federal District Court. In response to

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Plaintiffs’ specific allegations, this Judge has absolutely no

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interest in continued benefit payments from his past employment

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as a Superior Court Judge and no interest in the fines and

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penalties prayed for by Plaintiffs under the California Political

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Reform Act.

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Despite Plaintiffs’ argument to the

Further, although Plaintiffs vaguely refer to this

Even Plaintiffs’ untimely Declaration fails to assert such a
fact concretely. ECF No. 115-1 at ¶ 5a (“Plaintiffs did not have
an obligation to investigate the judge and did not initiate any
investigation of the judge[.]”).
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Judge’s “personal knowledge of disputed evidentiary facts

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concerning the proceedings,” Mot. at 10, this Judge is unaware of

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any such facts.

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Plaintiffs cite helpful.

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13.

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complaint in those matters or the remedy sought.

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is no information that would enable the Court to determine

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whether those particular district judges were similarly situated

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to this Judge at this time.

The Court also does not find the Recusal Orders
See Plaintiffs’ Exhibits Vol. 1, Exh.

The exhibits do not indicate the substance or details of the
Moreover, there

The Court, after viewing the issues

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in this case and considering its own situation, is fully

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satisfied that Rule 60 is not implicated.

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there has been no Due Process violation.

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The Court need not and will not vacate its final judgment or any

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other order on this basis.

For the same reasons,
See Mot. at 5–6; 11.

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2.

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Request for a Three Judge Court

Plaintiffs argue that the Court lacked authority to strike

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Plaintiffs’ request for a three judge court and that this act,

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too, is grounds to vacate the Court’s judgment.

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Plaintiffs claim the strike was a “prejudicial error.”

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injustice flowed from that ruling.

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request on October 20, 2016, and instructed that any such request

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must be filed as a motion.

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month between that Order and the Court’s final judgment to re-

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file their request as a motion.

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Plaintiffs failed to file any Opposition to Defendants’ Motions

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to Dismiss, which were due eighteen days before the Court entered

Mot. at 11–12.
Mot. at

The Court does not find, however, that any prejudice or
The Court struck Plaintiffs’

ECF No. 100.

Plaintiffs had nearly a

See ECF No. 102.

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Furthermore,

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its judgment on the merits.

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the dismissal on the merits.

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responding to this Court’s order and adhering to standard rules

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of procedure led to the outcome they now ask the Court, in its

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discretion, to vacate.

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nor justified under either Rule 59(e) or Rule 60(b).

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Even now, Plaintiffs do not dispute
Plaintiffs own neglect in

The requested relief is neither required

III.

ORDER

For the reasons set forth above, the Court DENIES
Plaintiff’s Motion to Vacate and for Other Relief.
IT IS SO ORDERED.
Dated: May 18, 2017

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