Ryan Peters v. Board of Trustees of the Vista Unified School District et al

Filing 74

ORDER Denying 71 Plaintiff's Motion for Reconsideration. Signed by Judge M. James Lorenz on 5/12/2010. (All non-registered users served via U.S. Mail Service)(mjj)

1 2 3 4 5 6 7 8 9 10 11 RYAN PETERS, 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) BOARD OF TRUSTEES OF THE VISTA ) ) UNIFIED SCHOOL DISTRICT, et al. ) ) Defendants. ) Civil No. 08cv1657-L(NLS) ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

In this civil rights case arising in the educational context, pending before the court is

18 Plaintiff's motion to reconsider. On August 11, 2009 the court granted in part a motion to 19 dismiss filed by a group of Defendants associated with Vista Unified School District ("Vista 20 Defendants"). On December 7, 2009 the court granted a motion to dismiss brought by 21 Defendants associated with Guajome Park Academy in which Vista Defendants had joined. For 22 the reasons discussed in the two orders, all of Plaintiff's claims were barred by the applicable 23 statutes of limitations. Judgment for Defendants was entered on December 7, 2009. On 24 December 16, 2009 Plaintiff filed a notice of appeal. On January 11, 2010 Plaintiff filed a 25 motion to reconsider. Plaintiff does not specify whether he is proceeding under Federal Rule of 26 Civil Procedure 59 or 60. 27 Generally, once a party files a notice of appeal, the district court is divested of jurisdiction

28 over any matter which is the subject matter of the appeal. Griggs v. Provident Consumer
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1 Discount Co., 459 U.S. 56, 58 (1982). Although Plaintiff, proceeding pro se,1 does not identify 2 which order he is requesting the court to reconsider, it appears that he seeks reconsideration of 3 the dismissal of his case generally. The Notice of Appeal states that "Plaintiff will be appealing 4 any and all claims." (Notice of Appeal at 2.) It therefore appears that the subject of Plaintiff's 5 motion to reconsider and his appeal is the same, and that under the general rule the court was 6 divested of jurisdiction when Plaintiff filed a notice of appeal. 7 An exception to the general rule is provided in Rule 4(a)(4) of the Federal Rules of

8 Appellate Procedure, which provides that in enumerated circumstances a district court retains the 9 power to alter or amend judgment when a notice of appeal has been filed. Griggs, 459 U.S. at 10 59-60. Rule 4(a)(4) tolls the date when the notice of appeal takes effect until the district court 11 rules on a "motion listed in Rule 4(a)(4)(A)." Fed. R. Civ. Proc. 4(a)(4)(B)(i). This exception 12 applies to a motion under Federal Rule of Civil Procedure 60, if the motion is filed no later than 13 28 days after the judgment is entered, or under Rule 59. Fed. R. App. P. 4(a)(4)(A)(v)&(vi); see 14 also Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1113 n.1 (9th Cir. 1999), citing Griggs, 15 459 U.S. at 61. 16 Plaintiff does not specify whether he seeks relief under Rule 59(e), which allows for a

17 motion to alter or amend judgment, or under Rule 60(b), which provides for relief from a final 18 judgment or order. A Rule 59 motion must be filed no later than 28 days after the entry of 19 judgment. With respect to Rule 60 motions, the court retains jurisdiction only over motions filed 20 no more than 28 days after entry of judgment. The 28-day time period expired on January 4, 21 2010. Plaintiff's motion, which was filed on January 11 is therefore denied as untimely. 22 In the alternative, the motion is denied on the merits. Rule 59(e) "offers an extraordinary

23 remedy, to be used sparingly in the interests of finality and conservation of judicial resources." 24 Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation 25 marks omitted). A Rule 59(e) motion "should not be granted absent highly unusual 26 circumstances, unless the district court is presented with newly discovered evidence, committed 27 28
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Plaintiff's counsel withdrew on January 14, 2010.
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1 clear error, or if there is an intervening change in the controlling law." 389 Orange Partners v. 2 Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Plaintiff does not rely on any newly discovered 3 evidence or change in controlling law, and he does not point to any clear error in the finding that 4 his claims are time barred. All the arguments asserted in support of his motion to reconsider 5 either were already asserted in opposition to Defendants' motions to dismiss or could have been 6 asserted at that time. Plaintiff therefore did not present any grounds for relief under Rule 59(e). 7 8 9 10 11 12 13 Rule 60(b) provides the following grounds for relief from a final judgment or order: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

14 Plaintiff does not specify on which of the six grounds he is relying. If the motion is construed as 15 based on a Rule 60(b)(1) mistake by the court, Petitioner must show that the court committed a 16 specific error. Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989). Plaintiff restates some of 17 the legal arguments he advanced in opposition to the motions to dismiss and which the court 18 rejected. Plaintiff does not provide any grounds to find the previous orders in error. Plaintiff 19 also does not point to any evidence discovered after his last opportunity for briefing so as to 20 justify relief under Rule 60(b)(2). Because Plaintiff does not raise any grounds which could fall 21 under Rule 60(b)(3) through (5), the court also considers his motion under Rule 60(b)(6), the 22 only remaining ground which could potentially apply. "[C]lause (6) acts as a catch-all allowing 23 the court to grant relief for `any other reason justifying relief from the operation of the 24 judgment.'" Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004), quoting Fed. R. Civ. P. 25 60(b)(6). This provision has been "used sparingly and as an equitable remedy to prevent 26 manifest injustice." Id. (internal quotation marks and citation omitted). A party is entitled to 27 relief under Rule 60(b)(6) if he demonstrates "extraordinary circumstances" to justify relief. 28 Straw, 866 F.2d at 1172. Plaintiff does not point to any extraordinary circumstances justifying
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1 relief from the judgment. As noted above, Plaintiff presents only arguments which he either 2 already raised in opposition to the motions to dismiss or which he could have raised at that time. 3 Plaintiff therefore did not present any grounds for relief under Rule 60(b). 4 5 6 7 DATED: May 12, 2010 8 9 10 COPY TO: M. James Lorenz United States District Court Judge For the foregoing reasons, Plaintiff's motion to reconsider is DENIED. IT IS SO ORDERED.

HON. NITA L. STORMES 11 UNITED STATES MAGISTRATE JUDGE 12 ALL PARTIES/COUNSEL 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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