Greenspan v. IAC/InterActiveCorp et al

Filing 154

ORDER denying Plaintiff's Post-Judgment Motions 116 , 121 , 124 , 127 , 131 , 133 , 144 , and 153 . (rmwlc1, COURT STAFF) (Filed on 8/31/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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BRAD GREENSPAN,

Case No. 14-cv-04187-RMW

Plaintiff,
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ORDER DENYING PLAINTIFF’S
POST-JUDGMENT MOTIONS

v.
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IAC/INTERACTIVECORP, et al.,

Re: Dkt. Nos. 116-134, 144-146, 153

Defendants.
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Judgment was entered in this case on May 15, 2015. Dkt. No. 30. Plaintiff’s motion to set

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aside the judgment was denied on May 5, 2016. Dkt. No. 99. Plaintiff’s motion to set aside the

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May 5, 2016 order was denied on June 9, 2016. Dkt. No. 114. Plaintiff, proceeding pro se, has filed

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eight motions since then:

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

Motion for Sanctions, Dkt. No. 116;

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Motion to Strike and Local Rule Objection to Reply Evidence, Dkt. No. 121;

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Motion to Alter or Amend Judgment Under FRCP 59(e), Dkt. No. 124;

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FRCP 60(b)(1) Motion for Relief, Dkt. No. 127;

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FRCP 60(d)(3) Motion for Relief, Dkt. No. 131;

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

Motion to Amend Complaint, Dkt. No. 133;

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

Second Motion to Strike, Dkt. No. 144; and

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

Motion for Administrative Relief, Dkt. No. 153.

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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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The court heard argument on plaintiff’s first seven motions on August 26, 2016. The court finds

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plaintiff’s eight motion suitable for decision without oral argument. Plaintiff’s motions are denied

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for the reasons set forth below.

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I.

BACKGROUND
This case was dismissed with prejudice for failure to diligently prosecute on May 15, 2015.

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Dkt. No. 29. Judgment was entered on the same day. Dkt. No. 30. Plaintiff moved to set aside the

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judgment, and the court deferred ruling on plaintiff’s motion, indicating that the court would grant

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relief from judgment once plaintiff 1) obtained new counsel and 2) reimbursed defendants for

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costs and expenses incurred as a result of the entry of judgment. Dkt. No. 66. Plaintiff obtained
new counsel, but plaintiff did not reimburse defendants by the deadline, despite obtaining an

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United States District Court
Northern District of California

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extension from the court. See Dkt. No. 90. Accordingly, the court denied plaintiff’s motion to set

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aside judgment on May 15, 2016. Dkt. No. 99. In the same order, the court granted plaintiff’s

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counsel’s motion to withdraw. Id. Plaintiff filed a notice of appeal of this court’s May 15, 2016

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order on May 16, 2016. Dkt. No. 108.

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II.

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ANALYSIS
Plaintiff seeks to reopen this case. At the hearing, plaintiff argued that defendants did not

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provide payment instructions so that plaintiff could timely reimburse defendants. Plaintiff has

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made no showing that defendants were remiss in responding to any request for payment

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instructions from plaintiff. It is not clear what prevented plaintiff from simply writing checks to

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the named defendants in the prescribed amounts by April 25, 2016. If plaintiff was genuinely

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confused about whom or how to pay, plaintiff could have requested clarification from defendants

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or the court at any point before the deadline.

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Plaintiff also represents that he made partial payments to both defendants on April 29,

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2016. See Dkt. Nos. 122 at 3-4. Once plaintiff identified the amount of the payment, Google was

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able to confirm that Mayer Brown received a payment of $7.77 on April 29, 2016. See Dkt. No.

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139-1. IAC has no record of the $7.70 payment referenced in plaintiff’s declaration. See Dkt. No.

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137-1. Even accepting plaintiff’s representations as to both payments, such payments would not

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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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establish compliance with the court’s conditions for setting aside the judgment—the payments

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represent only a small percentage of the amounts set for reimbursement and were not made until

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four days after the extended deadline. The court is not persuaded by plaintiff’s argument that he

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was afraid that defendants would not acknowledge receipt of full payment even if he made such

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payments; the court would have received and considered any evidence of a timely attempt to

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comply with the court’s conditions. The judgment entered in this case remains in place.
Plaintiff’s individual motions are difficult for the court to parse, but they appear to consist

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primarily of arguments that are frivolous, repetitive of arguments previously made by plaintiff,

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and/or unrelated to the relief purportedly sought by plaintiff.1 To the extent the court understands

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plaintiff’s motions, they are denied as follows.

United States District Court
Northern District of California

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A.

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Plaintiff seeks sanctions against both defendants, citing Federal Rule of Civil Procedure 11

Motion for Sanctions

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and several other rules. To the extent plaintiff relies on Rule 11, the motion must be denied for

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failure to comply with the “safe harbor” provision of Rule 11(c)(2). A Rule 11 sanctions motion

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“must not be filed or be presented to the court if the challenged paper, claim, defense, contention,

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or denial is withdrawn or appropriately corrected within 21 days after service.” There is no

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indication that plaintiff served the sanctions motions on Google or IAC at any point before filing

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the motion with the court. See Dkt. No. 138. Moreover, the court finds no basis for awarding

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sanctions against either defendant.
Plaintiff’s motion for sanctions against Google for failure to supplement its corporate

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disclosure statement in accordance with Federal Rule of Civil Procedure 7.1(b) is denied. Plaintiff

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appears to object that Google did not use the term “parent company” in its October 8, 2015

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disclosure: “Google Inc. is a wholly owned subsidiary of Alphabet Inc.; accordingly, Alphabet

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Inc. has more than 10% ownership of Google Inc.” See Dkt. No. 73. Plaintiff has not identified

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Plaintiff’s motions are also procedurally deficient in several respects. For example, plaintiff
noticed several motions for hearing less than thirty-five days after filing, despite being reminded
of Civil Local Rule 7-2 by this court. See Dkt. No. 114 at 1 n.1.
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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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any discernable deficiency in Google’s October 8, 2015 disclosure—there is no requirement that

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Google use the word “parent” to describe Alphabet.

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Plaintiff’s motion for sanctions against IAC for failure to timely file its corporate

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disclosure statement in accordance with Federal Rule of Civil Procedure 7.1 and Civil Local Rule

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3-15 is also denied. In response to plaintiff’s motion, IAC filed a corporate disclosure statement,

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certifying that “there is no publicly held corporation that owns 10% or more of Defendant IAC’s

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stock.” Dkt. No. 136. IAC does not dispute that its corporate disclosure statement was late. At the

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hearing, plaintiff indicated that he believes sanctions are mandatory in this case. The court is

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unaware of authority requiring that sanctions be imposed for failure to timely file a corporate

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disclosure statement, and plaintiff has not identified any resulting prejudice in this case.

United States District Court
Northern District of California

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B.

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Plaintiff’s motion to strike parts of the declarations filed by counsel for Google on May 5,

Motion to Strike and Local Rule Objection to Reply Evidence

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2016 and by counsel for IAC on May 3, 2016 is denied. The motion is denied as moot because

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judgment has been entered and plaintiff’s motion to set aside the judgment has been denied.

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Furthermore, Federal Rule of Civil Procedure 12(f) permits a court to strike “from a pleading an

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insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” (emphasis

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added); see also Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (“Under

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the express language of the rule, only pleadings are subject to motions to strike.”). Declarations

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are not pleadings under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 7(a). Rule 12(f)

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also requires that any motion to be strike be made within 21 days after service of the pleading if a

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response to the pleading is not required. Plaintiff’s motion was not filed within 21 days of service

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of either declaration.

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C.

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Plaintiff moves the court to alter or amend its June 5, 2016 Judgment. See Dkt. No. 124 at

Rule 59(e) Motion to Alter or Amend the Judgment

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2. This court did not issue any order on that date, and the only judgment in this case was entered

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on May 15, 2015. Interpreting plaintiff’s motion as one to amend the court’s June 9, 2016 order

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denying plaintiff’s motion to set aside the judgment, plaintiff’s motion is denied because (1) the

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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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June 9, 2016 order is not a judgment and (2) plaintiff’s proposed amendments to the order

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reference arbitration and insurance contracts, rather than the subject of the order—namely

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plaintiff’s lack of evidence of his compliance with the court’s conditions for setting aside the

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judgment.

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D.

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Plaintiff’s motion to set aside the court’s September 18, 2015 order and vacate or modify

Rule 60(b)(1) Motion to Set Aside Order

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the court’s November 10, 2015 order is denied. Federal Rule of Civil Procedure 60(b)(1) permits a

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court to “relieve a party or its legal representative from a final judgment, order, or proceeding” for

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“mistake, inadvertence, surprise, or excusable neglect.” Plaintiff does not identify any mistake or
other error in either of the court’s orders—plaintiff only references an SEC report and an

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United States District Court
Northern District of California

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indemnification agreement, neither of which is relevant to the matters before this court.

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E.

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Plaintiff’s motion to set aside the court’s May 5, 2016 order, June 6, 2016 order,2 or to

Rule 60(d)(3) Motion to Set Aside Order

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modify the April 1, 2016 because of “fraud on the court” is denied. Plaintiff’s argument seems to

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be that he was prevented from reimbursing defendants in accordance with the court’s order

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because defendants fraudulently failed to identify the parties in interest to this litigation.

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This court lacks jurisdiction to amend its May 5, 2016 order while an appeal is pending.

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See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402, 74 L. Ed. 2d

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225 (1982) (“The filing of a notice of appeal is an event of jurisdictional significance—it confers

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jurisdiction on the court of appeals and divests the district court of its control over those aspects of

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the case involved in the appeal.”). At the hearing, plaintiff represented that the pending appeal is

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actually a petition for review of an SEC whistleblower action, and that he withdrew the appeal at

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the time he filed his Rule 60 motions. Plaintiff filed a “Notice of Withdrawal of Rule 23F Appeal

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Only” on June 2, 2016, but plaintiff paid the filing fee for the appeal the next day. See Dkt. Nos.

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110, 111.

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The court did not issue an order on June 6, 2016. The court interprets plaintiff’s motion as one to
set aside the court’s order of June 9, 2016.
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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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Even assuming that the court has jurisdiction, and assuming that plaintiff could show that

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the defendants’ filings were misleading as to the names of the parties in interest, plaintiff has not

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alleged any facts that would affect the basis for this court’s May 5, 2016, June 6, 2016, or April 1,

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2016 orders. The court denied plaintiff’s motion to set aside the judgment because plaintiff failed

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to reimburse defendants, noting that plaintiff’s counsel did not request payment instructions from

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defendant until the last day for payment. See Dkt. No. 99, May 5, 2016 Order. The court denied

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plaintiff’s motion to set aside that order because plaintiff presented no new evidence of

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compliance. See Dkt. No. 114, June 9, 2016 Order. The court granted plaintiff’s only timely

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request for an extension of time to reimburse defendants. See Dkt. No. 90, April 1, 2016.

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Therefore, plaintiff’s Rule 60(b)(2) motion is denied.

United States District Court
Northern District of California

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F.

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Plaintiff’s motion to amend the complaint is denied as moot because judgment has been

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Motion to Amend Complaint

entered in this case.

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G.

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In plaintiff’s second motion to strike, plaintiff objects to what appears to be a

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typographical error in IAC’s opposition brief filed on July 5, 2016—the brief is dated July 5,

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2015. As noted above, a Rule 12(f) motion to strike applies only to pleadings, and briefs are not

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pleadings. Moreover, plaintiff’s request to strike the incorrect date from IAC’s opposition brief is

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denied as frivolous. To the extent plaintiff incorporates his motion for sanctions against both

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defendants in his second motion to strike, the motion is denied for the reasons stated in section

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II.A above.

Second Motion to Strike

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H.

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Plaintiff moves for a contempt order “concerning miscellaneous administrative matters.”

Motion for Administrative Relief

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Dkt. No. 153 at 2. Plaintiff alleges that defendant News Corp3 violated a variety of procedural

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rules in a case pending before Judge Koh, Case No. 5:14-cv-040602-LHK. Neither plaintiff nor

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News Corp did not make an appearance in this case before judgment was entered.
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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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News Corp is listed as a party in that case. Plaintiff also argues that “[b]oth defendants” should be

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held in contempt for “refusing to reply or respond to timely filed and served Delaware Motion 70b

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in August 2014,” and that IAC “refused to appear and answer Plaintiff’s Complaint” in the

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Delaware Court of Chancery. Dkt. No. 153 at 4-5. None of these matters are properly before this

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court. Plaintiff’s motion is denied.

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III.

CONCLUSION

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For these reasons, plaintiff’s motions are denied.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: August 31, 2016
______________________________________
Ronald M. Whyte
United States District Judge

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14-cv-04187-RMW
ORDER DENYING PLAINTIFF’S POST-JUDGMENT MOTIONS
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