Elofson v. Bivens et al

Filing 25

ORDER DENYING 24 MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION. Signed by Judge Beth Labson Freeman on 2/29/2016. (blflc1, COURT STAFF) (Filed on 2/29/2016)

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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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GREG STEVEN ELOFSON,

Case No. 15-cv-05761-BLF

Plaintiff,
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v.
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STEPHANIE BIVENS, et al.,
Defendants.

ORDER DENYING MOTION FOR
LEAVE TO FILE A MOTION FOR
RECONSIDERATION
[Re: ECF 24]

United States District Court
Northern District of California

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Plaintiff Greg Steven Elofson, proceeding pro se, seeks leave to file a motion for

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reconsideration of this Court’s order denying his application for a temporary restraining order

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(“TRO”). Plaintiff’s TRO application described the circumstances under which the Arizona

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superior court appointed Defendant Stephanie McCollum as the guardian and conservator of

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Plaintiff’s father, Milo Elofson, and reflected Plaintiff’s desperate concerns regarding Milo’s

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health and well-being under McCollum’s aegis. Plaintiff sought a TRO that would, among other

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things, enjoin McCollum from exercising her powers as Milo’s guardian and conservator and

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require her to disclose Milo’s location and medical status. The Court denied Plaintiff’s TRO

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application based upon its conclusion that Plaintiff had not shown a likelihood of success on the

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merits of the claims in his complaint. Because Plaintiff has not demonstrated any potential basis

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for reconsideration of that ruling, his current motion likewise must be DENIED.

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In this district, a party must seek leave of court before filing a motion for reconsideration

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of an interlocutory order. Civ. L.R. 7-9(a). The party seeking leave must show reasonable

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diligence and one of the following: (1) a material difference in fact or law exists from that which

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was presented to the Court before entry of the interlocutory order, and the moving party in the

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exercise of reasonable diligence did not know such fact or law at the time of the interlocutory

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order; (2) the emergence of new material facts or a change of law occurring after the interlocutory

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order; or (3) a manifest failure by the Court to consider material facts or dispositive legal

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arguments which were presented to the Court before the interlocutory order. Civ. L.R. 7-9(b). The

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moving party may not reargue any written or oral argument previously asserted to the Court in

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connection with the interlocutory order. Civ. L.R. 7–9(c).

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Plaintiff first asserts the existence of new facts that have developed since the Court’s denial

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of Plaintiff’s application for a TRO. Specifically, Plaintiff describes communications in which

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Defendants allegedly agreed to let Plaintiff speak with Milo and then failed to follow through on

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that agreement. Plaintiff asserts that those new facts show a likelihood of irreparable harm to
Milo. While likelihood of irreparable harm is one of the four factors that must be established by a

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United States District Court
Northern District of California

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plaintiff seeking a TRO, see Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20

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(2008), the Court did not focus on that factor when denying Plaintiff’s application. The Court

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denied Plaintiff relief based entirely upon Plaintiff’s failure to establish another of the Winter

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factors, likelihood of success on the merits. The Court concluded that Plaintiff cannot establish a

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likelihood of success on the merits of his claims because the Court lacks subject matter

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jurisdiction over those claims under the Rooker-Feldman doctrine. See Order at 8, ECF 23. Thus

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Plaintiff’s submission of new facts relevant to likelihood of irreparable harm does not provide a

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potential basis for reconsideration.

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Plaintiff next asserts that reconsideration is warranted based upon several decisions

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addressing the Rooker-Feldman doctrine that predate his motion for a TRO but that he did not

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bring to the Court’s attention. Although the latest of those decisions was issued in 2005, Plaintiff

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argues that his failure to cite them in his TRO application was not caused by a lack of diligence

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but by the complexity of the Rooker-Feldman doctrine and the urgency of the circumstances.

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Even if the Court were to accept Plaintiff’s representations of diligence, the cited cases would not

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alter the Court’s determination that the Rooker-Feldman doctrine bars Plaintiff’s claims. In Exxon

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Mobil Corp., the Supreme Court held that “[w]hen there is parallel state and federal litigation,

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Rooker-Feldman is not triggered simply by the entry of judgment in state court.” Exxon Mobil

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Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005). However, the Supreme Court
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affirmed that district courts lack subject matter jurisdiction over “cases brought by state-court

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losers complaining of injuries caused by state-court judgments.” Id. at 284. The present case does

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not involve parallel state and federal litigation – it falls squarely within the latter category of cases

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in which an individual who lost before a state court impermissibly seeks review of the state court

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rulings. The other cases cited by Plaintiff likewise fail to support his position. See, e.g., Noel v.

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Hall, 341 F.3d 1148, 1163 (9th Cir. 2003) (“It is a forbidden de facto appeal under Rooker-

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Feldman when the plaintiff in federal district court complains of a legal wrong allegedly

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committed by the state court, and seeks relief from the judgment of that court.”).

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The Court recognizes Plaintiff’s understandable frustration arising from his inability to
communicate with Milo or participate in his care. However, this Court lacks jurisdiction to grant

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United States District Court
Northern District of California

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Plaintiff the relief that he seeks. Because Plaintiff has failed to present any potential basis for

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reconsideration of the order denying his application for a TRO, Plaintiff’s motion for leave to file

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a motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated: February 29, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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