Christopher v. Reaching Fourth Ministries et al

Filing 37

ORDER (1) Granting in Part and Denying in Part 33 Motion for Reconsideration; (2) Partially Reinstating Case and (3) Transferring Case to Eastern District of Texas. The Court reinstates Plaintiff's fraud claim alleged in the SAC against the D efendants and orders that the claim be transferred to the Eastern District of Texas under 8 U.S.C. §1631. The Court denies Plaintiff's motion for reconsideration on all other grounds. Plaintiff's non-transferred conversion and negligen ce claims remain dismissed without prejudice. Plaintiff is advised that because he is proceeding in forma pauperis and because the Court has not conducted a screening of the plausibility of his fraud claim, that claim may be subject to sua sponte dismissal upon a mandatory screening by the Eastern District of Texas. Signed by Judge Cynthia Bashant on 5/17/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CARREA CHRISTOPHER,

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Case No. 17-cv-00726-BAS-BLM
Plaintiff,

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ORDER:

v.

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(1) GRANTING IN PART AND
DENYING IN PART MOTION
FOR RECONSIDERATION [ECF
No. 33];

REACHING FOURTH
MINISTRIES,
et al.,

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(2) PARTIALLY REINSTATING
CASE

Defendants.

AND

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(3) TRANSFERRING CASE TO
EASTERN DISTRICT OF TEXAS

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I.

BACKGROUND

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Plaintiff Carrea Christopher, proceeding in forma pauperis (“IFP”), filed a

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Second Amended Complaint (“SAC”) on November 14, 2017. (ECF No. 18.)1 The

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SAC alleged claims of fraud, negligence, and “illegal drainage of resources” in

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connection with land located in Cherokee County, Texas against nine defendants.

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The case had twice been dismissed for Plaintiff’s failure to properly invoke
diversity jurisdiction. (ECF Nos. 3, 14.)
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(Id.)

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On January 22, 2018, this Court granted the motion to dismiss for lack of

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personal jurisdiction filed by appearing Defendants, Defendants Buffco Production,

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Inc. (“Buffco”), Frank M. Bufkin III, Jason Moore, John Rich, and Arthur “Eric”

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Swanson. (ECF No. 30.) The Court also considered whether transfer of the case

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would be appropriate under 28 U.S.C. §1631, which permits a court that finds it lacks

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jurisdiction to transfer, “interest of justice,” an “action . . . to any other . . . court in

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which the action . . . could have been brought at the time was filed.” (Id. at 9–10.)

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The Court determined that Plaintiff’s claims for negligence and conversion would

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have been untimely in the Eastern District of Texas. (Id. at 11.) The Court

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recognized a lack of agreement among courts about whether a partial transfer of a

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case is permitted under Section 1631, but concluded that it would be improper to

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sever the untimely claims and transfer only Plaintiff’s fraud claim. (Id.) The Court

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dismissed Plaintiff’s claims without prejudice to refiling in a proper forum in Texas.

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(Id.)

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On February 16, 2018, Plaintiff moved for reconsideration of the Court’s

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decision to dismiss the case, rather than transfer it to the Eastern District of Texas.

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(ECF No. 33.) Although Plaintiff contends that the Court “danced around” the fact

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that a substantial part of the events occurred in San Diego, California (id. at 7), he

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does not purport to seek reconsideration of the Court’s personal jurisdiction

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determination. The appearing Defendants have not responded to Plaintiff’s motion

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for reconsideration. The Court now addresses Plaintiff’s motion.

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II.

DISCUSSION

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A.

The Rule 59(e) Standard Applies

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As an initial matter, the Court mist identify what legal standard to apply to

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Plaintiff’s motion for consideration, which does not identify any particular rule under

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which it is brought. A motion for reconsideration may be brought under either

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Federal Rules of Civil Procedure 59(e) or 60(b). See Taylor v. Knapp, 871 F.2d 803,
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805 (9th Cir. 1989), cert. denied 493 U.S. 868 (1989). “A motion is characterized

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pursuant to Rule 59(e) or Rule 60(b) based upon its filing date. If a motion is served

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within 28 days of rendition of judgment, the motion will ordinarily fall under Rule

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59(e).” Kraft v. Old Castle Precast Inc., LA CV 15-00701-VBF, 2016 WL 4120049,

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at *2 (C.D. Cal. Aug. 2, 2016). Motions filed after twenty-eight days are considered

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pursuant to Rule 60(b). Id. Here, Plaintiff’s motion was filed within 28 days after

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the entry of judgment. Accordingly, the Court construes it as a Rule 59(e) motion to

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amend the judgment.

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Under Rule 59(e), reconsideration of a judgment is “an extraordinary remedy

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which should be used sparingly.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111

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(9th Cir. 2011). Such reconsideration motions “‘are disfavored and are rarely

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granted.’” IV Solutions, Inc. v. TakeCare Ins. Co., Inc., CV 13-4592-JFW (MANx),

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2014 WL 8515781, *1 (C.D. Cal. Feb. 28, 2014) (quoting Trust Corp. v. Aetna Cas.

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& Surety Co., 873 F. Supp. 1386, 1393 (D. Ariz. 1994)). Generally, a Federal Rule

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59(e) motion is properly granted only: (1) if it is necessary to correct manifest errors

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of law or fact upon which the judgment rests, (2) if is necessary to present newly

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discovered or previously unavailable evidence, (3) if it is necessary to prevent

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manifest injustice, or (4) if the amendment of the judgment or order is justified by an

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intervening change in controlling law. See Herron, 634 F.3d at 1111.

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B.

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Here, Plaintiff contends that the Court’s order dismissing the case was clearly

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erroneous because any statute of limitations was tolled (1) due to his incarceration

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until “November 2015” and (2) because of the Defendants’ fraudulent acts to conceal

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their conduct, which prevented Plaintiff from uncovering their conduct. (ECF No.

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33 at 4–5.)

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determination that Plaintiff’s negligence and conversion claims could not have been

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timely brought in the Eastern District of Texas.

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Application

Both of these challenges are presumably directed to the Court’s

The Court rejects Plaintiff’s second reason. The Court’s order expressly noted
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that the SAC identified Plaintiff’s discovery of the misconduct as occurring on March

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27, 2015 and the Court assessed the statute of limitations against that date. (ECF No.

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30 at 10–11.)

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The Court also rejects Plaintiff’s first reason regarding tolling of the statute of

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limitations due to his incarceration. A motion for reconsideration is not a vehicle to

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make arguments or present evidence that should have been raised before. Database

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Am., Inc. v. Bellsouth Adver. & Pub’g Corp., 825 F. Supp. 1216, 1220 (D. N.J. 1993).

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Plaintiff has not once in the litigation ever referred to being incarcerated during the

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events alleged until his motion for reconsideration and, even then, has only offered a

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general averment with no concrete, supporting factual information. Even considering

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the argument now, Plaintiff refers only to California law, which permits tolling of a

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statute of limitations if the cause of action accrues during incarceration, not to exceed

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two years. See CAL. CIV. PROC. CODE §352.1(a). But as the Court expressly noted

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in its prior order, the relevant statute of limitations is supplied by Texas law because

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the Section 1631 inquiry here was whether Plaintiff’s action would have been timely

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brought in the Eastern District of Texas. (ECF No. 30 at 10–11.) Plaintiff has not

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identified any similar tolling provision under Texas law. Nor can he because

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“imprisonment does not toll the running of the limitations period” under Texas law.

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Walton v. 203rd Dist. Court, No. 05-06-01460-CV, 2007 WL 1098437, at *1 (Tex.

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Ct. App. 2007) (citing Slack v. Carpenter, 7 F.3d 418, 419 (5th Cir.1993) (per

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curiam); Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir.1993); TEX. CIV. PRAC. &

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REM. CODE ANN. §16.001(a)). Accordingly, the Court rejects Plaintiff’s first reason

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as well. The Court finds that there are no grounds warranting reconsideration of its

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transfer decision insofar as Plaintiff seeks reconsideration of the Court’s

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determination that his conversion and negligence claims would have been untimely

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in the Eastern District of Texas.

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Plaintiff also contends that the Court “ignored” the law under 28 U.S.C. §1391

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(ECF No. 33 at 7), a statute governing venue of civil actions in federal courts.
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Plaintiff appears to argue that a substantial part of the events or omissions occurred

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in San Diego, California and, therefore, venue is proper in this district under Section

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1391(b)(2). (Id.) The Court construes this as an argument that the Court committed

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clear legal error. Although Plaintiff raised a Section 1391 argument in opposition to

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the appearing Defendants’ motion to dismiss, his argument lacked merit insofar as

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personal jurisdiction was concerned. Section 1391(b) is a venue provision; it does

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not create personal jurisdiction over a party. See Adel Hassan Hamad v. Gates, No.

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C10-591 MJP, 2010 WL 4511142, at *4 (W.D. Wash. Nov. 2, 2010); David D.

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Siegel, Commentary on 1988 and 1990 Revisions of Section 1391, found at 28 U.S.C.

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§1391 (“Nothing in these venue statutes is intended to expand the personal

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jurisdiction of federal courts.”). Plaintiff has not asked the Court to reconsider its

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personal jurisdiction determination, nor has Plaintiff proffered any new evidence in

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his motion for reconsideration that would warrant amending the Court’s personal

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jurisdiction determination. (See ECF No. 30.) Accordingly, the Court denies

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Plaintiff’s motion for reconsideration to the extent he asserts a Section 1391 venue

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argument.

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Although Plaintiff’s proffered reasons for reconsideration of the Court’s

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dismissal of the case based on the failure to satisfy the Texas statute of limitations

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with respect to his negligence and conversion claims are insufficient, implicit in

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Plaintiff’s motion is a request that the Court should reconsider its decision not to

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transfer Plaintiff’s fraud claim. The Court construes this as an argument that it was

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manifestly unjust not to transfer the case, at least with respect to Plaintiff’s fraud

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claim, to the Eastern District of Texas. A manifest injustice is any “error in the trial

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court that is direct, obvious and observable, such as a defendant’s guilty plea that is

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involuntary.” See In re Oak Park Calabasas Condominium Ass’n, 302 B.R. 682, 683

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(Bankr. C.D. Cal. 2003) (defining manifest injustice under Rule 59(e)). Here, the

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Court concludes that it was manifestly unjust not to transfer Plaintiff’s fraud claim to

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the Eastern District of Texas.
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In considering whether transfer was appropriate, the Court did not account for

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certain factors that would have warranted transfer of Plaintiff’s fraud claim, which

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could have been timely brought in the Eastern District of Texas. The Ninth Circuit

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has indicated that it is generally in the interest of justice to transfer an action rather

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than dismiss it. Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (“Normally

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transfer will be in the interest of justice because normally dismissal of an action that

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could be brought elsewhere is time-consuming and justice-defeating”); see also

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Pfister v. Selling Source, LLC, 931 F. Supp. 2d 1109, 1119 (D. Nev. 2013)

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(transferring case rather than dismissing it when the transfer would “lead to a more

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just, speedy, and inexpensive resolution for all parties”). Moreover, courts have

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taken into account a plaintiff’s pro se status to find that a partial transfer of claims

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under Section 1631 is warranted. See, e.g., Cannon v. Aurora Bank, No. CV 12-1017

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PSG (MRWx), 2012 WL 12882879, at *4 (C.D. Cal. May 8, 2012) (“Section 1631’s

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policy in favor of aiding confused or misinformed litigants, combined with the

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obscurity of the local action doctrine and Plaintiffs’ pro se status weighs heavily in

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favor of transfer.”); Johnson v. Mitchell, No. CIV S-10-1968 GEB GGH PS, 2012

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WL 1594203, at *6 (E.D. Cal. May 4, 2012); Fisher v. United States, 676 F. Supp.

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2d 1165, 1169 (W.D. Wash. 2009) (“[A] court may consider whether the petitioner

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was aware of the jurisdictional issue when he or she filed the action, and may also

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consider whether the petitioner is pro se.”)

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Here, Plaintiff has a fraud claim that would have been timely in the Eastern

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District of Texas and he is proceeding pro se. He does not appear to understand

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personal jurisdiction limitations. Plaintiff’s opposition to the appearing Defendants’

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motion to dismiss for lack of such jurisdiction did not address personal jurisdiction,

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but rather argued that the Court possessed diversity jurisdiction under 28 U.S.C.

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§1332, supplemental jurisdiction under 28 U.S.C. §1367, and that venue was proper

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under 28 U.S.C. §1391. (ECF No. 24.) Although the Court dismissed Plaintiff’s

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action without prejudice and specifically instructed that he could refile his claims in
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Texas, Plaintiff appears not to understand that he can do so. Instead, he has filed a

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motion for reconsideration, during which time he could have sought to refile all of

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his claims in the Eastern District of Texas. The Court finds that these circumstances

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show that there are equitable factors, which warrant severance of Plaintiff’s time-

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barred conversion and negligence claims and the transfer of his fraud claim under

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Section 1631. Accordingly, the Court finds that it was manifestly unjust not transfer

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Plaintiff’s fraud claim and grants in part Plaintiff’s motion for reconsideration insofar

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as it seeks to reinstate Plaintiff’s fraud claim and transfer that claim to the Eastern

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District of Texas.

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III.

CONCLUSION & ORDER
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN

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PART Plaintiff’s motion for reconsideration.

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REINSTATES Plaintiff’s fraud claim alleged in the SAC against the Defendants and

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ORDERS that the claim be transferred to the Eastern District of Texas under 8 U.S.C.

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§1631. The Court DENIES Plaintiff’s motion for reconsideration on all other

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grounds.

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dismissed without prejudice.

(ECF No. 33.)

The Court

Plaintiff’s non-transferred conversion and negligence claims remain

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Plaintiff is advised that because he is proceeding in forma pauperis and

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because the Court has not conducted a screening of the plausibility of his fraud claim,

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that claim may be subject to sua sponte dismissal upon a mandatory screening by the

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Eastern District of Texas.

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IT IS SO ORDERED.
DATED: May 17, 2018

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