Pham v. Financial Industry Regulatory Authority Inc. et al
Filing
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ORDER by Judge Edward M. Chen denying 41 Plaintiff's Motion for New Trial (emclc1, COURT STAFF) (Filed on 4/12/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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KURT PHAM,
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For the Northern District of California
United States District Court
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No. C-12-6374 EMC
Plaintiff,
v.
ORDER DENYING PLAINTIFF’S
MOTION FOR NEW TRIAL
FINANCIAL INDUSTRY REGULATORY
AUTHORITY INC., et al.,
(Docket No. 41)
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Defendants.
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___________________________________/
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Previously, a final judgment was entered against Plaintiff on February 20, 2013. See Docket
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No. 31 (judgment). Thereafter, Plaintiff filed a motion to reconsider which the Court construed as a
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motion for relief pursuant to Federal Rule of Civil Procedure 59(e) or 60(b). The Court denied that
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motion on April 1, 2013. See Docket No. 40 (order). Plaintiff has now filed in effect another
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motion to reconsider which he characterizes as a motion for a new trial pursuant to Rule 59(b). The
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Court hereby DENIES that motion.
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First, Plaintiff cannot bring a Rule 59(b) motion because no trial ever took place in this case.
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Rather, Plaintiff’s case was resolved on motions to dismiss. Second, even if the Court were to
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construe the motion as one to alter or amend the judgment, the Court has already construed
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Plaintiff’s prior motion as a Rule 59(e) motion and denied it on the merits. Plaintiff has failed to
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show that he is entitled to bring more than one Rule 59(e) motion. Finally, Plaintiff ignores the fact
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that, whether a motion is brought under Rule 59(b) or 59(e), it must be brought no later than 28 days
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after the entry of judgment. See Fed. R. Civ. P. 59(b), (e). Here, judgment was entered on February
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20, 2013. Thus, Plaintiff’s new motion -- filed on April 11, 2013 -- is patently untimely.
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Even if the Court were to overlook the above procedural problems, Plaintiff would fare no
(arguing that not only should Plaintiff be entitled to the five-day extension of time for mailing under
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the California Code of Civil Procedure but also the three-day extension of time for mailing under the
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Federal Rules of Civil Procedure, for a total extension of eight days). The only argument meriting
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attention in this order is Plaintiff’s contention that the Court erred in computing time because he
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timely asked FINRA to correct his award, which effectively extended his time to “appeal” under the
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California Code of Civil Procedure. See Mot. at 5; see also Cal. Code Civ. Proc. § 1284 (providing
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For the Northern District of California
better. The new arguments that Plaintiff raises are largely lacking in merit. See, e.g., Mot. at 4
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United States District Court
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that an application for correction based upon certain grounds “shall be made not later than 10 days
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after service of a signed copy of the award on the applicant”); id. § 1288.6 (providing that, “[i]f an
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application is made to the arbitrators for correction of the award, a petition may not be served and
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filed under this chapter until the determination of that application”). But there is no indication that
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FINRA has adopted these California rules. As the Court previously noted, the arbitration award
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states that a party may make submissions after a case has been closed under limited circumstances,
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see Docket No. 27-1, at 2 (arbitration award), but does not suggest that such a submission extends
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the time to file a petition to confirm or vacate. See Docket No. 30 (Order at 8).
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This order disposes of Docket No. 41.
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IT IS SO ORDERED.
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Dated: April 12, 2013
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_________________________
EDWARD M. CHEN
United States District Judge
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