Pham v. Financial Industry Regulatory Authority Inc. et al

Filing 43

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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 KURT PHAM, 9 11 For the Northern District of California United States District Court 10 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) 12 Defendants. 13 ___________________________________/ 14 15 16 Previously, a final judgment was entered against Plaintiff on February 20, 2013. See Docket 17 No. 31 (judgment). Thereafter, Plaintiff filed a motion to reconsider which the Court construed as a 18 motion for relief pursuant to Federal Rule of Civil Procedure 59(e) or 60(b). The Court denied that 19 motion on April 1, 2013. See Docket No. 40 (order). Plaintiff has now filed in effect another 20 motion to reconsider which he characterizes as a motion for a new trial pursuant to Rule 59(b). The 21 Court hereby DENIES that motion. 22 First, Plaintiff cannot bring a Rule 59(b) motion because no trial ever took place in this case. 23 Rather, Plaintiff’s case was resolved on motions to dismiss. Second, even if the Court were to 24 construe the motion as one to alter or amend the judgment, the Court has already construed 25 Plaintiff’s prior motion as a Rule 59(e) motion and denied it on the merits. Plaintiff has failed to 26 show that he is entitled to bring more than one Rule 59(e) motion. Finally, Plaintiff ignores the fact 27 that, whether a motion is brought under Rule 59(b) or 59(e), it must be brought no later than 28 days 28 1 after the entry of judgment. See Fed. R. Civ. P. 59(b), (e). Here, judgment was entered on February 2 20, 2013. Thus, Plaintiff’s new motion -- filed on April 11, 2013 -- is patently untimely. 3 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 6 the California Code of Civil Procedure but also the three-day extension of time for mailing under the 7 Federal Rules of Civil Procedure, for a total extension of eight days). The only argument meriting 8 attention in this order is Plaintiff’s contention that the Court erred in computing time because he 9 timely asked FINRA to correct his award, which effectively extended his time to “appeal” under the 10 California Code of Civil Procedure. See Mot. at 5; see also Cal. Code Civ. Proc. § 1284 (providing 11 For the Northern District of California better. The new arguments that Plaintiff raises are largely lacking in merit. See, e.g., Mot. at 4 5 United States District Court 4 that an application for correction based upon certain grounds “shall be made not later than 10 days 12 after service of a signed copy of the award on the applicant”); id. § 1288.6 (providing that, “[i]f an 13 application is made to the arbitrators for correction of the award, a petition may not be served and 14 filed under this chapter until the determination of that application”). But there is no indication that 15 FINRA has adopted these California rules. As the Court previously noted, the arbitration award 16 states that a party may make submissions after a case has been closed under limited circumstances, 17 see Docket No. 27-1, at 2 (arbitration award), but does not suggest that such a submission extends 18 the time to file a petition to confirm or vacate. See Docket No. 30 (Order at 8). 19 This order disposes of Docket No. 41. 20 21 IT IS SO ORDERED. 22 23 Dated: April 12, 2013 24 _________________________ EDWARD M. CHEN United States District Judge 25 26 27 28 2

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