Kimbrell v. Twitter Inc.

Filing 49

ORDER DENYING 45 MOTION TO VACATE JUDGMENT by Judge Phyllis J. Hamilton. (pjhlc2S, COURT STAFF) (Filed on 4/9/2019)

Case 4:18-cv-04144-PJH Document 49 Filed 04/09/19 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JODY DIANE KIMBRELL,

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v.

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TWITTER INC.,

United States District Court
Northern District of California

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Case No. 18-cv-04144-PJH

Plaintiff,

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ORDER DENYING MOTION TO
VACATE JUDGMENT
Re: Dkt. No. 45

Defendant.

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On November 16, 2018, the court dismissed the above-entitled action, with leave

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to amend. Dkt. 37. On February 14, 2019, after pro se plaintiff Jody Kimbrell filed an

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amended complaint, the court again dismissed the action but this time with prejudice.

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Dkt. 43. The court entered judgment on the same day. Dkt. 44. Now before the court is

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plaintiff’s “Motion to Petition to Remit Bill of Review pursuant to Rule 60(b).” Dkt. 45.

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The court interprets the motion as a motion to vacate judgment pursuant to Federal Rule

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of Civil Procedure 60(b). The motion could also be considered a motion to alter or

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amend judgment pursuant to Federal Rule of Civil Procedure 59(e). The court considers

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both potential avenues of relief below.

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A motion to reconsider a final appealable order is appropriately brought under

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Federal Rule of Civil Procedure 59(e) or 60(b). Fuller v. M.G. Jewelry, 950 F.2d 1437,

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1442 (9th Cir. 1991). Reconsideration is an “extraordinary remedy, to be used sparingly

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in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.

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Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (discussing Rule 59(e)).

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Rule 59(e) allows a party to seek an order altering or amending a judgment. Rule
59(e) does not describe the conditions under which a court should reconsider a prior

Case 4:18-cv-04144-PJH Document 49 Filed 04/09/19 Page 2 of 2

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decision, but courts have determined that reconsideration under Rule 59(e) “should not

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be granted, absent highly unusual circumstances, unless the district court is presented

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with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law.” Kona Enterprises, 229 F.3d at 890.

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Under Rule 60(b), “the court may relieve a party . . . from a final judgment, order,
or proceeding” for the following reasons: (1) mistake, inadvertence, surprise, or

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excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could

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not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud,

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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the

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judgment has been satisfied, released, or discharged; it is based on an earlier judgment

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United States District Court
Northern District of California

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that has been reversed or vacated; or applying it prospectively is no longer equitable; or

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(6) any other reason that justifies relief. Fed. R. Civ. P. 60(b).

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Here, plaintiff contends that “newly discovered evidence” supports her motion to

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vacate or amend judgment. The only such “evidence” plaintiff points to are three online

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articles about Twitter and its CEO, Jack Dorsey. Plaintiff also appears to claim that

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Dorsey would testify to the factual accuracy of plaintiff’s complaint.

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Putting aside the question of whether online articles, two from a Russian news

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channel, are even admissible to prove the truth of the matter asserted, the court finds that

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plaintiff’s motion, the assertions therein, and the attached articles do nothing to remedy

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the deficiencies present in plaintiff’s now dismissed complaints. Thus, plaintiff has

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articulated no basis for vacating, altering, or amending the judgment. The motion is

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DENIED. The court will entertain no further motions in this case.

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IT IS SO ORDERED.
Dated: April 9, 2019

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PHYLLIS J. HAMILTON
United States District Judge

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