Williams v. Gyrus ACMI, LP et al
Filing
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ORDER DENYING 253 PLAINTIFF'S MOTION TO HAVE THE COURT REMEDY THE PREJUDICE CAUSED TO PLAINTIFF DUE TO THE CLERK'S OFFICE NEGLIGENCE. Signed by Judge Beth Labson Freeman on 5/10/2017. (blflc2S, COURT STAFF) (Filed on 5/10/2017) (Additional attachment(s) added on 5/10/2017: # 1 Certificate/Proof of Service) (tshS, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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PAMELA WILLIAMS,
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Plaintiff,
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v.
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GYRUS ACMI, LP, et al.,
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Defendants.
Case No. 14-cv-00805-BLF
ORDER DENYING PLAINTIFF’S
MOTION TO HAVE THE COURT
REMEDY THE PREJUDICE CAUSED
TO PLAINTIFF DUE TO THE CLERK’S
OFFICE NEGLIGENCE
[Re: ECF 253]
United States District Court
Northern District of California
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On April 28, 2017, Plaintiff Pamela Williams filed a “motion to have the court remedy the
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prejudice caused to plaintiff due to the clerk’s office negligence.” Mot., ECF 253. Prior to filing
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this motion, Ms. Williams also filed a notice of appeal to the Ninth Circuit. ECF 243.
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Generally, “[t]he filing of a notice of appeal divests the district court of jurisdiction.”
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Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986). However, as it concerns
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the post-trial motions listed in FRAP 4(a)(4)(A), “the pendency of an appeal does not affect the
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district court’s power to grant . . . relief.” Stone v. INS, 514 U.S. 386, 401 (1995). These types of
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post-trial motions “render the underlying judgment nonfinal both when filed before an appeal is
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taken (thus tolling the time for taking an appeal), and when filed after the notice of appeal (thus
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divesting the appellate court of jurisdiction).” Id. at 402–03; see Order from the Ninth Circuit,
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Broussard v. Charvat, No. 5:13-cv-04878-LHK, ECF 28, at 2 (holding that the district court
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retained jurisdiction even though a notice of appeal was filed before the post-trial motion).
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Federal Rule of Appellate Procedure 4(a)(4)(A) lists six motions: a motion for judgment,
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pursuant to Fed. R. Civ. P. 50(b); a motion to amend or make additional factual findings, pursuant
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to Fed. R. Civ. P. 52(b); a motion for attorney’s fees, pursuant to Fed. R. Civ. P. 54; a motion to
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alter or amend the judgment, pursuant to Fed. R. Civ. P. 59(e); a motion for new trial, pursuant to
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Fed. R. Civ. P. 59(a); and a motion for relief, pursuant to Fed. R. Civ. P. 60. Here, the only
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potentially applicable motions are a motion to amend or make additional factual findings, a motion
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to alter or amend the judgment, and a motion for relief from a final judgment.
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Williams contends that contrary to the Court’s finding, she did submit a declaration with
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her opposition to Defendants’ motions for summary judgment, which “would have provided this
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court with the facts that would have resulted in a denial of the summary judgment motion[s].” See
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Mot. 2; see also Order Granting Defendants’ Motions for Summary Judgment (“Summary
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Judgment Order”) 2 n.4, 18 n.13, ECF 237. Liberally construed, Plaintiff appears to be asking for
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reconsideration pursuant to Fed. R. Civ. P. 52(b), 59(e), or 60.
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However, because any such motions would be untimely, the Court DENIES Williams’
motion. First, Plaintiff’s motion was filed more than 28 days from the entry of judgment, and is
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United States District Court
Northern District of California
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therefore untimely pursuant to Fed. R. Civ. P. 52(b) and 59(e). See ECF 238 (judgment entered
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February 3, 2017). Second, to the extent Williams is seeking relief pursuant to Rule 60, the Court
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cannot conclude that she filed her motion in a reasonable time given Williams’ ample notice that
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the Court did not have in its possession the declaration of which she speaks. Fed. R. Civ. P. 60(c)
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(requiring that a motion under Rule 60(b) be made within a “reasonable time”).
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“What constitutes ‘reasonable time’ depends upon the facts of each case, taking into
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consideration the interest in finality, the reason for delay, the practical ability of the litigant to
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learn earlier of the grounds relied upon, and prejudice to other parties.” Lemoge v. United States,
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587 F.3d 1188, 1196–97 (9th Cir. 2009) (citation and quotation marks omitted). Here, the second
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and third factors weigh heavily in favor of finding that Williams did not make this motion, to the
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extent it may be construed as a motion under Rule 60(b), “within a reasonable time.” First,
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Williams does not explain why she did not bring this motion or point out the Court’s alleged
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“negligence” at an earlier date. Second, Williams first learned that the undersigned did not
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possess a substantive declaration from her during the hearing on Defendants’ motions for
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summary judgment more than four months before she filed the instant motion. Indeed, during the
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January 5, 2017, hearing, the Court noted several times that it had not received any substantive
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declaration from Ms. Williams. The Court also asked Ms. Williams where it could find her
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version of the facts in the record. Nevertheless, Williams could not direct the Court to any
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United States District Court
Northern District of California
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evidence in the record. The Court cites the following exchange as an example:
Ms. Williams: The Defendants relied on three customers that they
claim were customers of Olympus or Gyrus. These were not
customers of Olympus or Gyrus, nor had I made any sales
presentations to the three surgeons who allegedly complained
against me. They were not my customers . . . .
The Court: I don’t remember seeing any evidence on that in your
papers. I can’t consider argument now, so if you can point that out
to me - - I read this, but I always want to know if I’ve missed
something. And so if you can show me a declaration that you’ve
submitted with those facts, I would be glad to consider it.
Ms. Williams: Okay. In the - - well, Your Honor, on my objections,
I stated that I objected to the - - to the declarations of the customers
as hearsay. They were not verified. Because, again, I didn’t believe
that these customers would actually make any comments or
statements about me or my performance when they had no point of
reference because I never presented any products - - I never made
any appointments with these customers to present any products. . . . .
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Hr’g Tr. 7:17–8:12, ECF 235. Later during the hearing, the Court explicitly stated “I didn’t get a
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declaration from you, except to indicate - - to submit the documents. So I don’t have this
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evidence.” Id. at 24:13–15; see also id. at 24:22–25 (“[Y]ou’re giving me facts that needed to be
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in a declaration of yours, and I didn’t get that declaration. So I’m not going to hear anything more
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on additional facts because I can’t consider them.”). Ms. Williams acknowledged that the Court
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had no such declaration. Id. at 24:16 (responding “[r]ight” to the Court’s comments).
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Ms. Williams was again alerted of the fact that the undersigned had not received a
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declaration laying out her version of the facts in the Court’s ruling on Defendants’ summary
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judgment motions, as Ms. Williams emphasizes in the present motion. Mot. 2; see Summary
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Judgment Order 2 n.4 (“In her opposition, Plaintiff argues that the decision to split the territory
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was racially motivated and that Caucasian Territory Managers with territories the same size or
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larger were not split. Ms. Williams, however, provides no evidence to support this argument, and
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she did not provide a declaration stating the facts despite the instructions on the pro se form to
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submit a declaration with the facts along with the motion.” (citations omitted)); id. at 18 n.13 (“At
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the hearing, Williams argued that the three customers were not customers of Olympus or Gyrus
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and the three surgeons who complained about her were not her customers. However, Williams
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provides no evidence of this, nor did she submit a declaration laying out her version of the facts as
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instructed to do by the pro se form.” (citations omitted)).
Despite this knowledge, Ms. Williams did not file the instant motion until more than four
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months after the hearing and three months after the Court issued its ruling and entered judgment.
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Accordingly, the Court concludes that this motion was not filed within a reasonable time. See
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Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 n.2 (9th Cir. 1982) (agreeing that Rule
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60(b) motion did not comply with the reasonable time requirement where the motion was filed 18
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days after the expiration of the time for appeal of the order); Zamora v. Wells Fargo Bank, N.A.,
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No. 13-cv-134, 2014 WL 2093763, at *3 (N.D. Cal. May 19, 2014) (finding that an unexplained
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delay of four months was unreasonable under Rule 60(b)); McPhatter v. Ryan, No. CV 11-814,
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2013 WL 428280, at *5 (D. Ariz. Feb. 4, 2013) (unexplained delay of four months and five days
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United States District Court
Northern District of California
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justified denying Rule 60(b)(1) motion as untimely, as did fact that nothing impeded plaintiff’s
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awareness of the grounds relied upon); Regan v. Frank, No. 06-66, 2008 WL 508067, at *3–4 (D.
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Haw. Feb. 26, 2008) (denial of plaintiff’s Rule 60(b)(1) and (6) motion as untimely justified where
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plaintiff waited over four months to file it, and “provided no reasonable justification for his
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continued delay”); Villegas v. City of Colton, No. 09-cv-644, 2011 WL 3568270, at *2–3 (C.D.
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Cal. Aug. 9, 2011) (Rule 60(b)(1) motion found untimely where the five-month delay in filing
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motion was unexplained, and court found plaintiff’s reasons for failure to file opposition to motion
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for summary judgment insufficient).
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For the foregoing reasons, the Court DENIES Plaintiff’s motion.
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IT IS SO ORDERED.
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Dated: May 10, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge
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