Oracle Corporation et al v. SAP AG et al

Filing 1151

Declaration of Tharan Gregory Lanier in Support of 1150 Opposition/Response to Motion,, 1149 Opposition/Response to Motion, Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections, and Motion for Clarification filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Related document(s) 1150 , 1149 ) (Froyd, Jane) (Filed on 5/1/2012)

EXHIBIT 10

Page 1

1 of 1 DOCUMENT
CORY DEAN RUNGE, Plaintiff, v. Mr. IPPOLLITO; A. SOTELLO; M. R. TURK;
Mrs. BOCELLA; V. ORTEGA; E. GARCIA; J. W. DOVEY; M. S. EVANS; Mrs.
WOLF; A. MAJOR; Dr. LEE; Mr. ARMSTRONG; R. JONES; C. R. SHARPS; Mr.
CAITO; and JANE DOES 1-6, Defendants.
No. C 06-5218 PJH (PR)
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA
2009 U.S. Dist. LEXIS 27125

March 23, 2009, Decided
March 23, 2009, Filed
SUBSEQUENT HISTORY: Summary judgment
granted by, Summary judgment granted, in part, summary
judgment denied, in part by, Stay granted by Runge v.
Ippollito, 2010 U.S. Dist. LEXIS 29097 (N.D. Cal., Mar.
26, 2010)

OPINION

PRIOR HISTORY: Runge v. Ippollito, 2008 U.S. Dist.
LEXIS 28941 (N.D. Cal., Mar. 4, 2008)

This is a civil rights case filed pro se by a state
prisoner. In his amended complaint plaintiff presented
five claims. The court held that parts of each of the
claims were sufficient to proceed, but dismissed with
leave to amend as to several defendants. Plaintiff
amended, dropping his claims against Dovey, Caito, Lee
and Jones, and adequately pleading a claim against
Evans. Service was ordered on defendants Ippollito, A.
Sotello, M. R. Turk, Bocella, V. Ortega, E. Garcia, M. S.
Evans, A. Major, Armstrong, Rincon, Calderas, and C. R.
Sharps.

COUNSEL: [*1] Cory Dean Runge, Plaintiff, Pro se,
Soledad, CA.
For Mr. Ippollito, A. Sotelo, Turk, Mrs. Bocella, V.
Ortega, E. Garcia, Mike S. Evans, Arthur Major, Mr.
Armstrong, C R Sharps, Defendants: Charles J. Antonen,
LEAD ATTORNEY, California Department of Justice,
Office of the Attorney General, San Francisco, CA.
For Rincon, Officer, Defendant: Charles J. Antonen,
LEAD ATTORNEY, California Department of Justice,
San Francisco, CA.
JUDGES: PHYLLIS J. HAMILTON, United States
District Judge.
OPINION BY: PHYLLIS J. HAMILTON

ORDER RULING ON MOTIONS AND SETTING
DEADLINES; INSTRUCTIONS TO MARSHAL

The defendants named in claims one, two and four
moved to dismiss for failure to administratively [*2]
exhaust. The motion was granted and claims one, two and
four were dismissed for failure to exhaust. The remaining
defendants (on claims three and five) were Evans, Major,
Armstrong, Rincon and Calderas. The marshal was
ordered to use established procedures to find an address
at which defendants Correctional Officer Rincon and

Page 2
2009 U.S. Dist. LEXIS 27125, *2

RN/Nurse D. Calderas could be served, and to serve them
if an address were found. Rincon has been served;
Calderas has not.
Plaintiff has filed a number of motions.
DISCUSSION
A. Motion to Alter or Amend
Plaintiff has filed a motion to alter or amend the
judgment under Rule 59(e) of the Federal Rules of Civil
Procedure. No judgment has been entered, so a Rule
59(e) motion is not appropriate. Because petitioner is pro
se, however, it will be construed as a motion under the
local rules for leave to file a motion to reconsider.
The Federal Rules of Civil Procedure do not provide
for "Motions for Reconsideration;" such motions are
created by local rules or practice. In the Northern District
of California, Local Rule 7-9 allows for the filing of
motions for reconsideration only with respect to
interlocutory orders made in a case prior to the entry of
final judgment. See [*3] Civil L.R. 7-9(a).

case, Lassiter v. Dep't of Social Services, 452 U.S. 18, 25,
101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), and although
district courts may "request" that counsel represent a
litigant who is proceeding in forma pauperis, as plaintiff
is here, see 28 U.S.C. § 1915(e)(1), that does not give the
courts the power to make "coercive appointments of
counsel." Mallard v. United States Dist. Court, 490 U.S.
296, 310, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989).
The Ninth Circuit has held that a district court may
ask counsel to represent an indigent litigant only in
"exceptional circumstances," the determination of which
requires an evaluation of both (1) the likelihood of
success on the merits and (2) the ability of the plaintiff to
articulate his claims pro se in light of the complexity of
the legal issues involved. Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991).
It is difficult to evaluate plaintiff's chances of success
at this stage of the case, but he has presented his claims
adequately so far, and the issues are not complex. The
motion for appointment of counsel will be denied.
C. Motion for Leave to Amend

No pre-judgment motion for reconsideration under
Local Rule 7-9 may be brought without leave of court.
See Civil L.R. 7-9(a). The moving party must specifically
show: (1) that at the time of the motion for leave, a
material difference in fact or law exists from that which
was presented to the court before entry of the
interlocutory order for which the reconsideration is
sought, and that in the exercise of reasonable diligence
the party applying for reconsideration did not know such
fact or law at the time of the interlocutory order; or (2)
the emergence of new material facts or a change of law
occurring after the time of such order; or (3) a manifest
failure by the court to consider material facts which were
presented to the court before such interlocutory order.
See Civil L.R. 7-9(b).

Plaintiff moves for leave to amend to add a claim six
to his complaint. He has [*5] not included a proposed
amended complaint with the motion, as required by Civil
Local Rule 10-1. The motion itself will not be treated as
the proposed amended complaint because an amended
complaint completely replaces the original complaint,
with the consequence that if the motion were treated as
the amended complaint the other two claims would no
longer be in the case. See Ferdik v. Bonzelet, 963 F.2d
1258, 1262 (9th Cir. 1992) (amended complaint
completely replaces original complaint). The motion will
be denied without prejudice to filing a motion with a
proposed complaint.

In his motion plaintiff attempts to reargue his
contention that he did enough to exhaust, and also
presents new arguments that could have been, but were
not, presented at the time of the ruling. He thus has failed
to establish any of the three showing required by the local
rule. The motion to alter or amend, treated as a motion
for leave to file a motion to reconsider, will be denied.

Plaintiff has moved to withdraw his motion for
summary judgment. The motion will be granted and the
motion for summary judgment will be treated as
withdrawn. This also moots his request for a ruling on the
summary judgment motion.

B [*4] Motion for Counsel
There is no constitutional right to counsel in a civil

D. Other Motions

Plaintiff also requests sanctions because, he alleges,
defendants have gained access to his mental health
records. As a response to this motion would aid the court,
defendants will be ordered to respond.

Page 3
2009 U.S. Dist. LEXIS 27125, *5

In two motions plaintiff asks that the defendants on the
remaining claims, three and five, be ordered to respond.
The court will enter a scheduling order requiring them
[*6] to do so.
In its order granting the motion to dismiss the court
ordered the marshal to employ established procedures,
including if necessary contacting the Litigation Response
Unit of the CDCR in Sacramento, in an attempt to obtain
an address for service on defendants Rincon and
Calderas. A return of service has been received showing
service on Rincon, but that addressed to Calderas was
returned with the notation "No record of this person at
Salinas Valley State Prison." There is no indication that
the Litigation Response Unit was contacted. Plaintiff
states that he has discovered that Calderas is working in
Coalinga, presumably at the state prison there. His
motion to serve Calderas there will be granted.

there.
5. Defendants shall file an opposition to the motion
for sanctions within thirty days of the date of this order. If
plaintiff wishes to file a reply, he shall do so within
fifteen days of the date the opposition is served on him.
6. In order to expedite the resolution of this case, the
court orders as follows:
a. No later than sixty days from the date of this order,
the remaining defendants shall file a motion for summary
judgment or other dispositive motion. If defendants are of
the opinion that this case cannot be resolved by summary
judgment, they shall so inform the court prior to the date
their summary judgment motion is due. All papers filed
with the court shall be promptly served on the plaintiff.

CONCLUSION
1. Plaintiff's motions to alter or amend (document 45
on the docket), for counsel (document 51), and for leave
to amend (document 69) are DENIED. Because the
motion for summary judgment has been withdrawn and
the court has ruled on plaintiff's motion for counsel, his
motions for rulings (documents 63 and 64) are DENIED
as moot.

b. Plaintiff's opposition to the dispositive motion, if
any, shall be filed with the [*8] court and served upon
defendants no later than thirty days from the date the
motion was served upon him.
c. If defendants wish to file a reply brief, they shall
do so no later than fifteen days after the opposition is
served upon them.

2. Plaintiff's motion to withdrawn his motion for
summary judgment (document 68) is GRANTED. The
clerk shall terminate the summary judgment motion [*7]
(document 61).
3. Plaintiff's motions to order defendants to respond
(documents 54 and 66) are GRANTED. The schedule
below requires them to respond.

d. The motion shall be deemed submitted as of the
date the reply brief is due. No hearing will be held on the
motion unless the court so orders at a later date.
7. The clerk shall provide a copy of this order to the
marshal.
IT IS SO ORDERED.
Dated: March 23, 2009.
/s/ Phyllis J. Hamilton

4. Plaintiff's motion for service on defendant
Calderas (document 67) is GRANTED. The marshal
shall contact the CDCR's Litigation Response Unit in
Sacramento to determine an address for service on D.
Calderas in Coalinga, California, and serve Calderas

PHYLLIS J. HAMILTON
United States District Judge