Fonua et al v. The City of San Mateo et al

Filing 66

ORDER DENYING PLAINTIFF KENNETH ASHTON FONUAS 65 OBJECTIONS TO JUDGMENT. Signed by Judge Claudia Wilken on 10/24/2011. (ndr, COURT STAFF) (Filed on 10/24/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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KALAKE FONUA and KENNETH ASHTON
FONUA,
Plaintiffs,

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No. 09-05983 CW
ORDER DENYING
PLAINTIFF KENNETH
ASHTON FONUA’S
OBJECTIONS TO
JUDGMENT

v.

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THE CITY OF SAN MATEO, et al.,

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Defendants.
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Plaintiff Kenneth Ashton Fonua filed two documents after

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judgment entered in this case.

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lodged against the abovementioned Judge Wilken’s decision to grant

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Summary Judgment for The City of San Mateo,” and the other is

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entitled, “Request for Postponement of the Pre-Trial Hearing

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Scheduled for June 28th, 2011.”

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document as a motion to reconsider the Court’s June 13, 2011 Order

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Granting Defendants’ Motion for Summary Judgment and for relief

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from the June 13, 2011 judgment in favor of Defendants.

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One begins, “Complaint is now

The Court construes the first

Federal Rule of Civil Procedure 60(b) provides that a court

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may relieve a party from final judgment for the following reasons:

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(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);

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(3) fraud (whether heretofore called intrinsic or
extrinsic), misrepresentation, or other misconduct of
an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged
. . .; (6) any other reason justifying relief from
operation of the judgment.

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Fed. R. Civ. P. 60(b).
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A motion brought under Rule 60(b) is similar to a motion for a
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new trial under Rule 59 of the Federal Rules of Civil Procedure,
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except that it may be asserted after the ten-day time limit for
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motions brought under Rule 59.

Rule 59(e) motions are interpreted

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as motions for reconsideration, and "should not be granted, absent
United States District Court
For the Northern District of California

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highly unusual circumstances, unless the district court is
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presented with newly discovered evidence, committed clear error, or
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if there is an intervening change in the controlling law."
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McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)
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(quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th
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Cir. 1999)).

The procedure provided by Rule 60(b) is not a

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substitute for appeal or a means of attacking some perceived error
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of the court.

Twentieth Century-Fox Film Corp. v. Dunnahoo, 637

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F.2d 1338, 1341 (9th Cir. 1980).
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In his motion, Plaintiff argues that, because the Court did
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not grant summary judgment to Defendants when they sought it in
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April 2011, it was inconsistent for the Court to then grant
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Defendants’ motion in June 2011.

Plaintiff states that he has been

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patiently waiting to bring his claims to trial, that he would win
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when his evidence is heard, and that he objects to the Court’s
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cancellation of the pretrial hearing scheduled for June 28, 2011
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because the Court scheduled the pretrial hearing itself.
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Plaintiff misconstrues the Court’s previous orders.

The April

order to which Plaintiff refers must be the April 19, 2011 Order on

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Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment

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(Docket No. 51), in which the Court noted that Plaintiffs had not

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filed their opposition to the motion for summary judgment by the

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April 14, 2011 deadline and ordered them to file it by April 26,

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2011.

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Defendants’ motion for summary judgment in a timely manner, the

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Court vacated the hearings on Defendants’ summary judgment motion

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United States District Court
For the Northern District of California

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and further case management conference that were scheduled for May

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5, 2011.

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the merits of Plaintiffs’ claims; it merely informed Plaintiffs

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that, in order to defend themselves against Defendants’ motion,

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they had to file an opposition.

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Because Plaintiffs did not file their opposition to

The April 19, 2011 Order did not express an opinion about

Furthermore, the Court routinely schedules pretrial

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conferences in cases as a procedural matter--the scheduling of a

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pretrial conference is not a statement about the merits of a case.

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In this case, at the July 13, 2010 initial case management

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conference, the Court scheduled a pretrial conference for June 28,

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2011.

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Granting Defendants’ Motion for Summary Judgment and the Clerk of

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the Court entered judgment in favor of Defendants.

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case and vacated any dates scheduled for hearings before the Court,

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including the previously scheduled June 28, 2011 pretrial

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conference.

However, on June 13, 2011, the Court entered its Order

This closed the

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Because Plaintiff does not present any argument that is

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cognizable under Rule 60(b), his request for reconsideration and

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for relief from final judgment is denied.

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is closed, his request for postponement of the pretrial conference

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is denied as moot.

Because Plaintiff’s case

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IT IS SO ORDERED.

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Dated: 10/24/2011
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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FONUA et al,

Case Number: CV09-05983 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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THE CITY OF SAN MATEO et al,
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Defendant.
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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on October 24, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Kalake Fonua
2555 Illinois Street
East Palo Alto, CA 94303

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Kenneth Ashton Fonua
2555 Illinois Street
East Palo Alto, CA 94303

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Dated: October 24, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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