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 5

Page 1

CHRISTOPHER JACKSON, Plaintiff, vs. J. WALKER, et al., Defendants.
No. CIV S-06-2023 WBS GGH P
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA
2010 U.S. Dist. LEXIS 45974

May 11, 2010, Decided
May 11, 2010, Filed
PRIOR HISTORY: Jackson v. Walker, 2009 U.S. Dist.
LEXIS 73464 (E.D. Cal., Aug. 19, 2009)

COUNSEL: [*1] Christopher Jackson, Plaintiff, Pro se,
Represa, CA.
For Jimmy Walker, Warden of CSP-Sacramento, Karen
Kelly, Health Care Manager, William Haythorne,
Business Services Manager, R Rodriguez, Supervisor
Cook II, Blair Ruller, Supervisor Cook II, Mike Arndt,
Supervisor Cook II, Anthony J. Malfi, D Lieber,
Baughman, Alice Smith, Renato Bernardino, C. Hague,
Defendants: Diana Esquivel, Attorney General's Office of
the State of California, Sacramento, CA.
JUDGES: WILLIAM B. SHUBB, UNITED STATES
DISTRICT JUDGE.
OPINION BY: WILLIAM B. SHUBB
OPINION

ORDER
Plaintiff has filed a "motion for relief from judgment
or order and stay of proceedings," citing Fed. R. Civ. P.
60(b)(1) & (6) and Rule 62(b). 1 Such a motion is, in fact,
a successive request for reconsideration of this court's

Order, filed August 19, 2009 (docket # 143), granting in
part and denying in part defendants' motion for summary
judgment. In that order, summary judgment was granted
as to nine defendants, with a tenth defendant, Walker,
granted summary judgment in an individual capacity, but
denied it in his official capacity, and, as to two other
defendants, Haythorne and Hague, summary judgment
was denied altogether. Plaintiff's previous request for
reconsideration, [*2] filed on October 8, 2009 (docket #
147), was denied on October 28, 2009 (docket # 149).
Plaintiff once again moves the court to reconsider its
ruling granting summary judgment to defendants Malfi,
Leiber, Arndt, Baughman, Rodriguez, Bernardino, Kelly,
Smith, Ruller, and as to Walker, in his individual
capacity only, based on plaintiff's repeated claim that he
sent these defendants' discovery responses to the court,
discovery responses that the magistrate judge noted in the
Findings and Recommendations, filed on June 17, 2009
(docket # 138), that were either not among plaintiff's
voluminous exhibits or which plaintiff had failed to
sufficiently identify. 2
1 As to a stay, trial in this matter has previously
been continued until July 27, 2010, based on
plaintiff's representation that he was scheduled for
total knee replacement surgery on March 2, 2010.
See Order, filed on January 26, 2010 (docket #
165).
2 The court's docket shows that plaintiff's filings
in opposition to defendants' summary judgment

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2010 U.S. Dist. LEXIS 45974, *2

notice consisted of 322 pages (docket # 134), plus
a 99-page "request for judicial notice" (docket #
133) for a total of 421 pages. The court has
reviewed these documents once again and once
[*3] again cannot locate the discovery responses
plaintiff avers that he mailed.
As plaintiff has been previously informed, although
motions to reconsider are directed to the sound discretion
of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92
F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations
of judicial economy weigh heavily in the process. Thus
Local Rule 230(j) 3 requires that a party seeking
reconsideration of a district court's order must brief the
"new or different facts or circumstances ... not shown
upon such prior motion, or what other grounds exist for
the motion...." The rule derives from the "law of the case"
doctrine which provides that the decisions on legal issues
made in a case "should be followed unless there is
substantially different evidence . . . new controlling
authority, or the prior decision was clearly erroneous and
would result in injustice." Handi Investment Co. v. Mobil
Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also
Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985),
cert. denied, 475 U.S. 1064, 106 S. Ct. 1374, 89 L. Ed. 2d
601 (1986).
3 In the prior order, the relevant portion of the
Local Rules, which have since been amended,
was identified as 78-230(k).
Courts construing Federal Rule of Civil Procedure
59(e), [*4] providing for the alteration or amendment of
a judgment, have noted that a motion to reconsider is not
a vehicle permitting the unsuccessful party to "rehash"
arguments previously presented, or to present
"contentions which might have been raised prior to the
challenged judgment." Costello v. United States, 765
F.Supp. 1003, 1009 (C.D.Cal. 1991); see also F.D.I.C. v.
Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Keyes v.
National R.R. Passenger Corp., 766 F. Supp. 277, 280
(E.D. Pa. 1991). These holdings "reflect[] district courts'
concerns for preserving dwindling resources and
promoting judicial efficiency." Costello, 765 F.Supp. at
1009. See Order, filed on October 28, 2009 (docket #
149), pp. 1-2.
Under Rule 60(b), a party may move for relief from
judgment on the following grounds: "(1) mistake,
inadvertence, surprise or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new
trial under Rule 59(b); (3) fraud..., misrepresentation, or
misconduct by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released or
discharged... or (6) any other reason that justifies relief."
In [*5] previously affirming the August 19, 2009,
Order challenged herein again by plaintiff, the court
stated, inter alia:
In the instant action, this court has
already considered the arguments plaintiff
presents here as they were essentially
contained within his objections to the
findings and recommendations prior to the
court's adoption of same. Plaintiff
continues to protest that he submitted
defendants'
discovery
responses
referenced in his opposition, even though
the magistrate judge noted such supporting
discovery documents were either not filed,
could not be located or were insufficiently
identified within plaintiff's opposition. In
reply to plaintiff's previously presented
objections, defendants made the cogent
points that plaintiff made no showing that
the magistrate judge granted the motion as
to ten of the twelve defendants because of
missing discovery responses and also
averred that they had not been served with
any of the discovery documents as part of
the opposition that were also not contained
in the court record of plaintiff's opposition
and supporting documents. Plaintiff, by
the instant motion seeking to re-visit the
issue, does not adequately refute and
address defendants' [*6] contentions and
essentially adds nothing new.
Order, filed on October 28, 2009 (docket # 149), pp. 2-3.
Plaintiff again insists that he sent a copy of
defendants' discovery responses to the court among those
documents/exhibits he sent in opposition to defendants'
motion for summary judgment. Motion, p. 2. Plaintiff
appears to state that he did not serve a copy of the
discovery responses upon the defendants with his
opposition and other exhibits. Id., at 4. Plaintiff has
evidently gone to some lengths in order to determine
whether the documents at issue were ever actually mailed

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2010 U.S. Dist. LEXIS 45974, *6

from the prison but has been unable to determine by the
responses he has received from the inmate trust office
and mailroom sergeant whether the documents were sent.
Id., at 4, 11, 21, 23. Plaintiff wants a hearing to seek a
subpoena for records in order to try to establish that he
sent the discovery responses; alternatively, he states that
by way of his exhibits, the unauthenticated records he
attaches to his motion as Exhibits A and B, he can show
by the cost of the postage that he sent the discovery
responses. Id., see also, Reply, p. 2. In reply to
defendants' opposition, plaintiff argues that he would be
[*7] subjected to manifest injustice or a miscarriage of
justice if the motion for summary judgment is not
revisited with the discovery responses as exhibits. Reply,
pp. 2-3. Plaintiff states that he does not seek to re-argue
his opposition to the previously adjudicated motion for
summary judgment, but to have his original opposition
considered "completely." Id., at 3. Of course, this is
essentially a distinction without a difference. Plaintiff has
never submitted the discovery documents he relentlessly
puts at issue with any of his objections or motions for
reconsideration. 4
4 Plaintiff included the cover sheets with his
objections, filed on August 4, 2009, which were
before the court when the Order, adopting the
findings and recommendations was filed on
August 19, 2009.
Plaintiff maintains that because all of his opposition
material was not before the court, through no fault of the
court or himself, that his opposition was not fully
considered. Motion, p. 5. What plaintiff fails to do,
however, is to specifically demonstrate that the lack of
the discovery responses at issue was the basis upon which
any defendant was granted summary judgment.
Moreover, plaintiff continues to fail to make [*8] a
showing that the magistrate judge recommended granting
the motion as to nine of the twelve defendants
(additionally recommending granting another defendant
summary judgment in an individual capacity only)
because of missing discovery responses.
"[A] motion for reconsideration of summary
judgment is appropriately brought under either Rule 59(e)
or Rule 60(b)." Fuller v. M.G. Jewelry, 950 F.2d 1437,
1441 (9th Cir. 1991)(finding the motion, construed as
brought under either rule, was properly denied). As
defendants note, a denial of a motion for reconsideration
under either Rule 59(e) is construed as a denial under

Rule 60(b). Opposition (Opp.), p. 3, citing Fuller, supra,
and United Nat. Ins. Co. v. Spectrum Worldwide, Inc.,
555 F.3d 772, 780 (9th Cir. 2009). 5 As indicated above,
reconsideration is appropriate where "the district court (1)
is presented with newly discovered evidence, (2)
committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change
in controlling law," although there may be "highly
unusual[] circumstances warranting reconsideration."
School Dist. No. 1J, Multnomah County, Oregon v. AC &
S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). [*9] As
defendants contend (Opp., p. 3), "[m]otions for
reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly
discovered evidence." Publisher's Res., Inc. v. Walker
Davis Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985).
5 "The Federal Rules of Civil Procedure do not
provide for a 'Motion for Reconsideration' but
such motions may properly be considered either a
Rule 59(e) motion to alter or amend judgment or a
Rule 60(b) motion for relief from judgment."
Hamilton Plaintiffs v. Williams Plaintiffs, 147
F.3d 367, 371 n. 10 (5th Cir. 1998).
As noted, plaintiff has previously raised his
argument concerning the absence of defendants'
discovery responses which he continues to insist that he
sent to the court with his opposition to defendants'
summary judgment motion. While plaintiff believes he
can show proof of having done so at a hearing, what he
has failed to do is to "set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision." United States v. Westlands Water District, 134
F.Supp.2d 1111, 1131 (E.D. Cal. 2001), citing
Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.
Supp. 656, 665 (E.D. Cal. 1986), [*10] affirmed in part
and reversed in part on other grounds, 828 F.2d 514 (9th
Cir. 1987)). "Disagreement with a decision or the
recapitulation of rejected arguments are not adequate
bases for reconsideration." Hoffman v. Tonnemacher,
2007 U.S. Dist. LEXIS 8646, 2007 WL 214554*2 (E.D.
Cal. 2007), citing id.
Plaintiff is essentially re-arguing previous arguments
he initially raised in his objections to the Findings and
Recommendations on the summary judgment motion, and
then again in a separate motion for reconsideration.
Whether or not plaintiff can prove that he sent discovery
responses that for some reason never reached the court or

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2010 U.S. Dist. LEXIS 45974, *10

were never filed in his case with his opposition does not
sufficiently undermine the court's ruling on the motion
for summary judgment or show manifest injustice.
Plaintiff has never shown how it was the absence of those
responses that resulted in the ruling granting summary
judgment to ten of the twelve defendants (with one of the
ten still retained in an official capacity). Nor, is it
appropriate for plaintiff to raise an argument that he has
previously raised in a motion pursuant to Fed. R. Civ. P.
59(e), once again under Rule 60(b).
Therefore, IT IS HEREBY ORDERED that
plaintiff's [*11] January 26, 2010 (Docket # 166) motion

for relief under Rule 60 (b), from a portion of the
summary judgment order, filed on, August 19, 2009
(Docket # 143), is denied. No further motions for
reconsideration of this matter will be considered.
DATED: May 11, 2010
/s/ William B. Shubb
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE