Chan v. Time Warner Inc et al

Filing 67

ORDER DENYING #64 PLAINTIFF'S MOTION FOR RECONSIDERATION. Signed by Judge Edward J. Davila on 2/26/2018. (ejdlc2S, COURT STAFF) (Filed on 2/26/2018)

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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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PENG CHAN,

Case No. 5:16-cv-06268-EJD

Plaintiff,
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

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v.
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TIMEWARNER, INC., et al.,

Re: Dkt. No. 64

United States District Court
Northern District of California

Defendants.
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Plaintiff Peng Chan (“Chan”) moves under Federal Rule of Civil Procedure 59(e) for

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reconsideration of the Court’s Order Denying Plaintiff’s Motion for Recusal and Motion for

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Reconsideration (Dkt. No. 60) (“Order”). This matter is suitable for decision without oral

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argument, and the hearing scheduled for March 1, 2018 will be vacated. Civ. L.R. 7-1(b). After

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carefully considering the parties’ submissions, the Court DENIES Chan’s motion for the following

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reasons:

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First, Chan’s motion is untimely. Rule 59(e) requires that “[a] motion to alter or amend a

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judgment must be filed no later than 28 days after the entry of the judgment.” Chan filed his

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motion on October 17, 2017, which was 34 days after the Court entered judgment on September

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13, 2017. See Dkt. Nos. 61, 64.

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Second, even if the Court were to look past Chan’s untimeliness and consider his motion

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under Rule 59(e), his motion lacks merit. A motion for reconsideration under Rule 59(e) is an

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“extraordinary remedy” which “should not be granted, absent highly unusual circumstances.”

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Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal quotation marks and citation

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Case No.: 5:16-cv-06268-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
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omitted). “There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion

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is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the

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moving party presents newly discovered or previously unavailable evidence; 3) the motion is

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necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law.”

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Turner v. Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (internal quotation

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marks and citation omitted).

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In his motion, Chan appears to focus on the “manifest errors of law or fact” basis,

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identifying four alleged “misapprehensions” which he contends are present in the Court’s Order.

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All of these lack merit. First, Chan argues that the Court misunderstood the relief requested in his
Motion for Leave to File a Motion for Reconsideration (Dkt. No. 56). Mot. 4. Not so. That

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United States District Court
Northern District of California

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motion sought “leave to file a motion for reconsideration of [the Court’s order granting

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Defendant’s Motion for a More Definite Statement],” Dkt. No. 56 at 3, and the Court denied the

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same, Dkt. No. 60 at 2. Second, Chan claims that the Court misidentified named Defendants

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because its order referred to “defendant Verizon, Inc.” when Verizon is not named as a defendant

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in Chan’s Complaint. Mot. 4. Setting aside that Chan himself termed Verizon, Inc. a “Sub-Class

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A Defendant” in his Motion for Recusal, Dkt. No. 55 at 5, the Court’s passing use of “defendant”

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in referring to Verizon, Inc. is not an “error . . . upon which the judgment is based.” Turner, 338

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F.3d at 1063. As such, it cannot serve as a basis for Chan’s Rule 59(e) motion. As to the final

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two “misapprehensions” identified by Chan, Chan appears to take issue with the fact that the

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Court’s Order did not specifically address Chan’s arguments regarding certain individuals or

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associations which Chan identified as “conflicts.” Mot. 4-5. This too is not persuasive. The

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Court’s Order addressed the entirety of Chan’s Motion for Recusal, including these alleged

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conflicts. See Dkt. No. 60 (“Chan’s motion is untimely . . . . Chan’s motion lacks merit.”). It need

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not specifically respond to Chan’s arguments line-by-line to confirm the same. Accordingly, Chan

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fails to identify any grounds upon which reconsideration under Rule 59(e) is warranted.

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At base, Chan’s motion is a thinly veiled attempt to get the Court to consider the same

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arguments that he raised in his original Motion for Recusal and Motion for Leave. Compare Dkt.

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Case No.: 5:16-cv-06268-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
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Nos. 55, 56, with Dkt. No. 64. However, “[a] motion for reconsideration is not a vehicle by which

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a party may rehash arguments and facts that the court has already considered in making the

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original ruling.” Villa v. Gipson, No. 1:13-cv-00814-AI-KSO HC, 2015 WL 5331618, at *2 (E.D.

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Cal. Sept. 11, 2015). It may be that Chan disagrees with the Court’s Order, but reconsideration

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under Rule 59(e) is not the proper recourse.

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Finally, the Court notes that Chan also is not entitled to relief under Rule 60(b). As
Defendants—not Chan—point out, “the court may construe an untimely motion for

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reconsideration brought under Rule 59(e) as a motion based on Rule 60(b).” Aronson v. Dog Eat

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Dog Films, Inc., 738 F. Supp. 2d 1104, 1120 (W.D. Wash. 2010); Mt. Graham Red Squirrel v.

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Madigan, 954 F.2d 1441, 1463 n.35 (9th Cir. 1992). However, for the same reasons discussed

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United States District Court
Northern District of California

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above, there are also no “extraordinary circumstances” here that qualify Chan for relief under Rule

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60(b). See Rule 60(b) (listing reasons under which a court may provide relief from a final

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judgment); Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009) (“The exercise of a court’s

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ample equitable power under Rule 60(b)(6) to reconsider its judgment requires a showing of

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extraordinary circumstances.”) (internal quotation marks and citation omitted).

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Accordingly, for the foregoing reasons, Chan’s motion for reconsideration of the Court’s

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Order Denying Plaintiff’s Motion for Recusal and Motion for Reconsideration (Dkt. No. 60) is

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DENIED.

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IT IS SO ORDERED.
Dated: February 26, 2018
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:16-cv-06268-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
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