Nilsen v. Lunas et al

Filing 73

ORDER by Judge Edward M. Chen Denying 71 Plaintiff's Motion for Reconsideration. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 7/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL DAVID NILSEN,
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

v.

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RYAN ERICKSON, et al.,

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Docket No. 71

Defendants.

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For the Northern District of California

United States District Court

Case No. 16-cv-03631-EMC

Plaintiff Michael David Nilsen has moved for reconsideration of a part of the order issued

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by the Court on September28, 2016. See Docket No. 37 (order granting various defendants‟

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motions to dismiss). Under the Civil Local Rules for this District, “[n]o party may notice a motion

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for reconsideration without first obtaining leave of Court to file the motion.” Civ. L.R. 7-9(a)

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(emphasis added). In addition, a party seeking leave of Court to file a motion for reconsideration

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must

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show reasonable diligence in bringing the motion, and one of the
following:
(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
reconsideration is sought. The party also must show 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 or
dispositive legal arguments which were presented to the
Court before such interlocutory order.

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Civ. L.R. 7-9(b).
The Court denies Mr. Nilsen leave to file a motion for reconsideration because he has
failed to meet the standard above.
For example, Mr. Nilsen has submitted new evidence to support his argument that the
Court‟s analysis of California Government Code § 26613 is incorrect. But Mr. Nilsen has failed

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to show that, in the exercise of reasonable diligence, he could not have known of this new

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evidence at the time of the Court‟s interlocutory order. Furthermore, diligence issues aside, he has

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failed to show that the new evidence is material because the Court held that, “[e]ven if section

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26613 did in fact limit his powers, [the deputy defendant] could have „reasonably believed‟ that he

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was entitled to make this stop” and thus “would be entitled to qualified immunity.” Docket No. 37

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(Order at 13).

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For the Northern District of California

United States District Court

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As another example, Mr. Nilsen has failed to show that the Court manifestly failed to

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consider material facts or dispositive legal arguments related to California Vehicle Code § 40300

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et seq. In its interlocutory order, the Court explained that § 40300 et seq. had no application

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because the deputy defendant “did not arrest Mr. Nilsen.” Docket No. 37 (Order at 12); see also

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Cal. Veh. Code § 40300 (providing that “[t]he provisions of this chapter shall govern all peace

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officers in making arrests for violations of this code without a warrant for offenses committed in

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their presence”) (emphasis added). Although Mr. Nilsen contends that “stops . . . are indeed

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arrests,” Mot. at 5, California Penal Code § 835 simply provides that “[a]n arrest is made by an

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actual restraint of the person, or by submission to the custody of an officer.” Cal. Pen. Code § 835

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(emphasis added). Moreover, contrary to what Mr. Nilsen suggests, there can be stops (or

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detentions) short of an arrest. See, e.g., Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.

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1996) (in Fourth Amendment analysis, stating that “[t]here is no bright-line rule to determine

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when an investigatory stop becomes an arrest”). As for Mr. Nilsen‟s reliance on California

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Vehicle Code § 40300.6, that statute does not stand for the proposition that an officer may arrest

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an individual for conduct not committed in his presence only where there is a traffic accident. See

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Cal. Veh. Code § 40300.6 (stating that “[s]ection 40300.5 shall be liberally interpreted to further

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safe roads and the control of driving while under the influence . . . in order to permit arrests to be
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made pursuant to that section within a reasonable time and distance away from the scene of a

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traffic accident”). As the Court stated in its interlocutory order, § 40300.5 expressly “allow[s] an

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officer to arrest a driver without a warrant where [he] has reasonable cause to believe that [the]

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driver has been driving under the influence if, inter alia, the person could injure himself or others,

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could destroy evidence of the crime, or could escape apprehension without immediate arrest.”

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Docket No. 37 (Order at 12).

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Accordingly, Mr. Nilsen‟s motion – liberally construed as a motion for leave to file a
motion for reconsideration – is denied.
This order disposes of Docket No. 71.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: July 11, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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