Grindstone Indian Rancheria et al v. Olliff

Filing 71

ORDER signed by District Judge John A. Mendez on 11/24/2021 DENYING 65 Motion and DIRECTING plaintiff's counsel to SHOW CAUSE why Rule 11 sanctions should not be imposed. Defendants are invited to submit a declaration with supporting documentation setting forth the attorneys' fees incurred in opposing this most recent motion. Both submissions are due by 12/3/2021. (Coll, A)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

GRINDSTONE INDIAN RANCHERIA
and ONE HUNDRED PLUS MEN,
WOMEN AND CHILDREN LIVING ON
THE GRINDSTONE INDIAN
RESERVATION,

10
11
12

Plaintiffs,

13

v.

14

No.

2:17-cv-02292-JAM-JDP

ORDER DENYING PLAINTIFFS’ RULE
60(b) MOTION FOR RELIEF FROM THE
COURT’S DENIAL OF PLAINTIFFS’
MOTION FOR SUMMARY ADJUDICATION

TERRANCE OLLIFF, et al.,

15

Defendants.

16
17

With their present motion,1 Plaintiffs attempt to take a

18

third bite at the apple.

19

No. 65.

20

Plaintiffs’ motion is denied.

See Pls.’ Mot. for Relief (“Mot.”), ECF

This attempt fails.

For the reasons set forth below,

21
22

I.

23

PROCEDURAL BACKGROUND

On July 2, 2019, Plaintiffs filed a motion for summary

24

adjudication on their declaratory relief claim.

25

for Summ. Adjudication (“First Mot.”), ECF No. 29.

See Pls.’ Mot.
On August 14,

26
27
28

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for November 16, 2021.
1
1

1

2019, the Court denied that motion.

2

No. 37.

3

See August 2019 Order, ECF

On April 6, 2021, Plaintiffs moved again for summary

4

adjudication on the same declaratory relief claim.

See Pls.’

5

Mot. for Summ. Adjudication (“Second Mot.”), ECF No. 52.

6

to “new declarations and the recent deposition of Defendants’

7

expert,” Plaintiffs insisted their second motion was not

8

identical to their first motion and that summary judgment was now

9

warranted.

Citing

Pl.’s Reply in support of Second Mot. at 3, ECF No.

10

55.

The Court disagreed.

11

59.

Thus, on July 21, 2021, the Court denied Plaintiffs’ renewed

12

motion and ordered Plaintiffs to show cause why the second motion

13

based on the same arguments the Court already considered and

14

rejected did not violate Rule 11(b)(1).

15

submitted their response, see Pl.’s Response, ECF No. 60, and the

16

Court declined to impose Rule 11 sanctions, see Minute Order, ECF

17

No. 61.

18

See generally July 2021 Order, ECF No.

Id. at 8.

Plaintiffs

Plaintiffs now bring a Rule 60(b) motion for relief from the

19

Court’s July 2021 Order denying their second motion for summary

20

adjudication on the declaratory relief claim.

21

Plaintiffs contend the Court made an error of law in denying the

22

motion.

23

68.

Id.

Defendants filed an opposition.

Plaintiffs replied.

See generally Mot.

See Opp’n, ECF No.

See Reply, ECF No. 69.

24
25
26

II.

OPINION

The parties first dispute whether the Plaintiffs’ motion is

27

procedurally proper.

Opp’n at 3-4; Reply at 2.

28

Plaintiffs bring the motion under Rule 60(b), but Defendants
2

Specifically,

1

contend that it is an improper Rule 60(b) motion because that

2

rule relates only to final orders.

3

explain, an order denying summary judgment is an interlocutory

4

decree and therefore not a final order that can be challenged

5

under Rule 60(b).

6

cite to Wilkins-Jones v. Cnty. of Alameda, No. C-08-1485 EMC,

7

2012 WL 3116025, at *2-3 (N.D. Cal. July 31, 2012), and BlueEarth

8

Biofuels, LLC, v. Hawaiian Elec. Co., Inc., Civ. No. 09-00181

9

DAE-KSC, 2011 WL 1230144, at *4-5 (D. Hawaii March 28, 2011).

Id.

Opp’n at 3.

As Defendants

In support of their position, Defendants

10

Id.

11

60(b) applies only to final orders or judgments and that a

12

partial summary judgment order, like the one at issue here, is

13

not a final order.

14

See Fed. R. Civ. P. 60(b) (“the court may relieve a party or its

15

legal representative from a final judgment, order or

16

proceeding”)(emphasis added).

17

Both of these case support Defendants’ position that Rule

So does the language of Rule 60(b) itself.

Plaintiffs do not address either Wilkins-Jones or BlueEarth

18

Biofuels, LLC.

19

response to the BlueEarth Biofuels, LLC court’s clear statement

20

that partial summary judgment orders are “not appealable final

21

orders” because they “do not dispose of all claims and do not end

22

the litigation on the merits.”

23

See Reply.

Significantly, Plaintiffs have no

2011 WL 1230144, at *5.

In short, Plaintiffs use of Rule 60(b) as a vehicle to

24

challenge the Court’s July 2021 Order denying partial summary

25

adjudication is improper.

26

motion as a one for reconsideration.

27
28

The Court thus construes Plaintiffs’

The Federal Rules of Civil Procedure do not expressly
provide for motions for reconsideration.
3

But where

1

reconsideration of a non-final order is sought, the court has

2

“inherent jurisdiction to modify, alter or revoke it.”

United

3

States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000).

“The

4

authority of district courts to reconsider their own orders

5

before they become final, absent some applicable rule or statute

6

to the contrary, allows them to correct not only simple mistakes,

7

but also decisions based on shifting precedent, rather than

8

waiting for the time-consuming, costly process of appeal.”

9

The Eastern District local rules too permit motions for

Id.

10

reconsideration but require counsel to identify “the material

11

facts and circumstances surrounding each motion for which

12

reconsideration is sought, including: (1) when and to what Judge

13

or Magistrate the prior motion was made; (2) what ruling,

14

decision, or order was made thereon; (3) what new or different

15

facts or circumstances are claimed to exist which did not exist

16

or were not shown upon such prior motion, or what other grounds

17

exist for the motion; and (4) why the facts or circumstances were

18

not shown at the time of the prior motion.”

19

230(j).

20

motion for reconsideration is not a vehicle to reargue the motion

21

or present evidence which should have been raised before.”

22

United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131

23

(E.D. Cal. 2001)(internal citations omitted).

24

reconsideration must show more than a disagreement with the

25

Court’s decision, and recapitulation of the cases and arguments

26

considered by the court before rendering its original decision

27

fails to carry the moving party’s burden.”

28

citations and quotation marks omitted).

E.D. Cal. Local R.

As other Eastern District courts have explained: “a

4

“A party seeking

Id. (internal

1

Here, Plaintiffs fails to carry their burden to show

2

reconsideration is warranted.

Plaintiffs present only one ground

3

not before the Court when it ruled on Plaintiffs’ second motion

4

for summary judgment: the Oregon Court of Appeals case Dykes v.

5

Arnold, 204 Or.App. 154 (Or. Ct. App. 2006).

6

see also Exh. to Mot., ECF No. 65-1.

7

may have recently discovered this case, Dykes is a 2006 case,

8

decided well before the Court issued its July 2021 Order denying

9

summary adjudication.

See Mot. at 12-13;

But even though Plaintiffs

Plaintiffs therefore had the opportunity

10

to raise Dykes in its previous motion.

11

See Second Mot.; see also Reply in support of Second Mot.

12

Plaintiffs may have discovered this case for the first time

13

recently is of no import.

14

whether “new facts or circumstances… which did not exist at the

15

time of the prior motion” are present.

16

230(j)(emphasis added).

17

time.

18

binding authority.

19

They failed to do so.
That

The inquiry under the local rule is

E.D. Cal. Local R.

Here, Dykes clearly existed at that

Further, an Oregon Court of Appeals decision, Dykes is not

Nor does the substance of Dykes support Plaintiffs’ position

20

that the Court that it erred in denying their motion.

See 204

21

Or.App. 154.

22

action against the defendant-landowner who owned adjacent lots of

23

land over a disputed strip of land between their lots.

24

relevant here, the Dykes Court did not rely upon 43 U.S.C.

25

Section 752 in affirming the lower court’s decision to dismiss

26

the ejectment action, quiet title to defendant, and declare

27

plaintiffs had a perpetual easement to defendant’s adjacent

28

property.

In Dykes, plaintiff-landowners brought an ejectment

Id.

As

Id. at 179 (stating “federal law says nothing-one way
5

1

or the other”).

Because the Dykes Court did not rely upon

2

Section 752 to reach its decision, that case does not support

3

Plaintiffs’ legal argument here that Section 752 or Dykes

4

interpretation of Section 752 controls this case.

5

2-3.

See Reply at

6

In sum, in addition to being presented in an untimely

7

manner, Dykes is not controlling caselaw warranting reversal of

8

the Court’s prior Order.

9

issues of material fact identified by the Court in its prior

10
11

Order either.

Dykes does not eliminate the disputed

See July 2021 Order at 6-7.

Lastly, as to (1) the “new” testimony from Defendants’

12

expert and (2) the Section 752 arguments Plaintiffs raise in

13

their motion and reply, both were before the Court when it denied

14

Plaintiffs’ motion in July.

15

constitutes a new fact or circumstance that was not present at

16

the time of the prior motion.

17

Rather, both represent “recapitulation of the . . . arguments

18

considered by the court” previously.

19

F.Supp.2d at 1131.

20

reconsideration.

See Second Mot.

Thus, neither

E.D. Cal. Local R. 230(j).

Westlands Water Dist., 134

This too is insufficient to warrant

21
22
23
24

III.

ORDER

For these reasons, Plaintiffs have not persuaded the Court
to reconsider its prior decision.

Plaintiffs’ Motion is DENIED.

25

The Court further orders Plaintiffs’ counsel to submit a

26

declaration showing cause why Rule 11 sanctions should not be

27

imposed. Plaintiffs third motion concerning the same issues, on

28

its face, arguably has been presented for the improper purpose of
6

1

causing unnecessary delay and needlessly increasing the cost of

2

litigation. Defendants are invited to submit a declaration with

3

supporting documentation setting forth the attorneys’ fees

4

incurred in opposing this most recent motion.

5

should be filed by December 3, 2021.

6
7

IT IS SO ORDERED.
Dated: November 24, 2021

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7

Both submissions