Cooney v. The State of California et al

Filing 62

ORDER denying in its entirety Plaintiff's 59 Motion for Reconsideration re 52 Order on Motion to Dismiss. Plaintiff fails to demonstrate entitlement to reconsideration. Signed by Judge Cynthia Bashant on 6/29/2015. (All non-registered users served via U.S. Mail Service) (jah)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

DEBORAH COONEY,
Plaintiff,

12
13
14
15

Case No. 13-cv-01373-BAS(KSC)

v.
THE STATE OF CALIFORNIA, ET
AL.,

ORDER DENYING PLAINTIFF’S
MOTION TO RECONSIDER THE
COURT’S ORDER TO DISMISS
DEFENDANTS WITHOUT
LEAVE TO AMEND
(ECF No. 59)

Defendants.

16
17
18
19

On July 18, 2014, the Court issued an order granting Defendants’ motions to

20

dismiss (ECF Nos. 35, 36, 38) without leave to amend. (ECF No. 52.) On September

21

2, 2014, plaintiff Deborah Cooney (“Plaintiff”) filed a motion for reconsideration

22

under Rules 54(b), 59(e), and/or 60(b)(1)-(3) of the Federal Rules of Civil Procedure

23

solely as to the Court’s determination that Plaintiff should not be granted leave to file

24

a Second Amended Complaint. (ECF No. 59.) Defendants City of San Diego, John

25

Kerr, Bonny Hsu, Keith Phillips, County of San Diego, Ivan Baroya, and George W.

26

Brewster, Jr. (collectively “Defendants”) filed an opposition. (ECF No. 60.) For the

27

following reasons, the Court DENIES Plaintiff’s motion.

28

///
–1–

13-cv-1373

1

I.

LEGAL STANDARD

2

Rule 60(b) of the Federal Rules of Civil Procedure provides for extraordinary

3

relief and may be invoked only upon a showing of exceptional circumstances.

4

Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir.1994) (citing Ben

5

Sager Chem. Int’l v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977)). Under

6

Rule 60(b), the court may grant reconsideration of a final judgment or an order based

7

on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

8

evidence which by due diligence could not have been discovered before the court’s

9

decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment

10

has been satisfied; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). The

11

last prong is “used sparingly as an equitable remedy to prevent manifest injustice and

12

is to be utilized only where extraordinary circumstances prevented a party from taking

13

timely action to prevent or correct an erroneous judgment.” Delay v. Gordon, 475

14

F.3d 1039, 1044 (9th Cir. 2007) (citing United States v. Alpine Land & Reservoir Co.,

15

984 F.2d 1047, 1049 (9th Cir. 1993) (internal quotations marks omitted)). It “applies

16

only when the reason for granting relief is not covered by any of the other reasons.”

17

Id. “A party seeking to re-open a case under Rule 60(b)(6) must demonstrate both

18

injury and circumstances beyond his [or her] control that prevented him [or her] from

19

proceeding with the prosecution or defense of the action in a proper fashion.” Id.

20

District courts also have the authority to entertain motions for reconsideration

21

of interlocutory orders at any time before the entry of final judgment. See Amarel v.

22

Connell, 102 F.3d 1494, 1515 (9th Cir. 1996) (“[I]nterlocutory orders and rulings

23

made pre-trial by a district judge are subject to modification by the district judge at

24

any time prior to final judgment.”); Fed. R. Civ. P. 54(b); Balla v. Idaho State Bd. of

25

Corr., 869 F.2d 461, 465 (9th Cir. 1989) (“Courts have inherent power to modify their

26

interlocutory orders before entering a final judgment. . . . In addition, [Rule 54(b) of]

27

the Federal Rules of Civil Procedure explicitly grants courts the authority to modify

28

their interlocutory orders.”). To determine the merits of a request to reconsider an
–2–

13-cv-1373

1

interlocutory order, the court applies the standard required under a Rule 59(e)

2

reconsideration motion. See Hydranautics v. FilmTec Corp., 306 F. Supp. 2d 958,

3

968 (S.D. Cal. 2003) (Whelan, J.).

4

Rule 59(e) permits a party to file a motion to alter or amend a judgment “no

5

later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “Although

6

Rule 59(e) permits a district court to reconsider and amend a previous order, the rule

7

offers an extraordinary remedy, to be used sparingly in the interests of finality and

8

conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

9

877, 890 (9th Cir. 2000) (internal quotation marks and citation omitted).

10

“Reconsideration is appropriate if the district court (1) is presented with newly

11

discovered evidence, (2) committed clear error or the initial decision was manifestly

12

unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J,

13

Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Allstate

14

Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011); Kona Enters., Inc., 229 F.3d

15

at 890. However, a Rule 59(e) motion for reconsideration may not be used to raise

16

arguments or present evidence for the first time when they could reasonably have been

17

raised earlier in the litigation. Kona Enters., Inc., 229 F.3d at 890. It does not give

18

parties a “second bite at the apple.” See Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th

19

Cir. 2001). “[A]fter thoughts” or “shifting of ground” do not constitute an appropriate

20

basis for reconsideration. Ausmus v. Lexington Ins. Co., No. 08-CV-2342-L, 2009

21

WL 2058549, at *2 (S.D. Cal. July 15, 2009) (Lorenz, J.).

22

II.

DISCUSSION

23

Plaintiff requests reconsideration of the Court’s Order granting the motions to

24

dismiss filed by Defendants and MD Dominick Addario, without leave to amend. (See

25

ECF No. 52.) With respect to her motion, Plaintiff only seeks reconsideration of the

26

Court’s decision not to grant Plaintiff leave to amend her First Amended Complaint.

27

(ECF No. 59 at 2, lines 4-5; ECF No. 61 at 3, ¶ 6.) Plaintiff claims that “[a]lthough

28

the Court may not have imagined it, it is possible to amend the Complaint so as to
–3–

13-cv-1373

1

state a valid claim.” (Id. at 4, lines 14-15.) Plaintiff seeks to amend her First Amended

2

Complaint to pursue relief from the assessment of Defendants’ costs against her in the

3

state court action on the basis that “[s]uch an assessment is unconstitutional.” (Id. at

4

4, lines 18-21.) Plaintiff has not previously presented this claim before any court,

5

including this Court. (See id. at 6, lines 1-4.) To explain her failure to previously

6

raise the claim, Plaintiff asserts she was deprived of the assistance of counsel in the

7

state court action and, in representing herself, she “may have made mistakes or

8

excusable errors.” (Id. at 6.)

9

As final judgment has already been entered in this case, the Court will analyze

10

Plaintiff’s motion under Federal Rules of Civil Procedure 59(e) and 60(b). In applying

11

Rule 59(e), the Court finds Plaintiff has presented no newly discovered evidence or

12

intervening change in controlling law, and further does not argue the Court committed

13

clear error or was manifestly unjust in ruling on the motions to dismiss. Plaintiff

14

simply seeks to bring an entirely new claim, of which she was aware prior to bringing

15

suit, and chose not to raise in either her initial complaint or amended complaint. A

16

Rule 59(e) motion for reconsideration may not be used to raise arguments or present

17

evidence for the first time when they could reasonably have been raised earlier in the

18

litigation. See Kona Enters., Inc., 229 F.3d at 890. “After thoughts” do not constitute

19

an appropriate basis for reconsideration. See Ausmus, 2009 WL 2058549, at *2.

20

Accordingly, Plaintiff’s motion under Rule 59(e) must be denied.

21

In applying Rule 60(b), the Court finds Plaintiff has made no showing of any

22

of the relevant factors, with the possible exception of “excusable neglect” on the basis

23

that Plaintiff is proceeding pro se. While a late filing by a pro se plaintiff may in the

24

rare circumstance be excused by negligence, see Briones v. Riviera Hotel & Casino,

25

116 F. 3d 379, 382 (1997), the Court finds Plaintiff’s failure to allege a claim, of which

26

she was aware, on two separate occasions, is not excusable neglect. Under Rule

27

60(b)(6), the Court may grant relief for “any other reason justifying relief;” however,

28

this option is to be “used sparingly as an equitable remedy to prevent manifest injustice
–4–

13-cv-1373

1

and is to be utilized only where extraordinary circumstances prevented a party from

2

taking timely action to prevent or correct an erroneous judgment.” Delay, 475 F.3d at

3

1044. The Court finds Plaintiff has not demonstrated manifest injustice will arise if

4

she is not permitted leave to file a Second Amended Complaint seeking relief from

5

the assessment of Defendants’ costs in her state court action, or that extraordinary

6

circumstances prevented her from taking timely action to protect her interests.

7

Therefore, Plaintiff’s motion under Rule 60(b) must also be denied.

8

III.

9
10
11

CONCLUSION & ORDER
Because Plaintiff fails to demonstrate entitlement to reconsideration, the Court

DENIES her motion in its entirety. (ECF No. 59.)
IT IS SO ORDERED.

12
13

DATED: June 29, 2015

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
–5–

13-cv-1373