Kern et al v. Moulton

Filing 108

ORDER denying 105 / 106 Motion to Vacate. Signed by Judge Robert C. Jones on 3/10/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GAYLE A. KERN et al.,

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Plaintiffs,

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vs.

3:11-cv-00296-RCJ-PAL

SHERYL MOULTON,

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ORDER

Defendant.

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This is a malicious prosecution case. Pending before the Court is a Motion to Vacate

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(ECF Nos. 105, 106).1 For the reasons given herein, the Court denies the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Gayle A. Kern, a Nevada resident, is an attorney and sole owner of Gayle A.

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Kern, Ltd., a Nevada limited liability company doing business as Kern & Associates. (Compl. 1,

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Apr. 26, 2011, ECF No. 1). Kern represents various homeowners, condominium associations,

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and their boards of directors, including Lakeside Plaza Condominium Association (“Lakeside

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Plaza”) and Salem Plaza Condominium Association (“Salem Plaza”). Part of her legal duties in

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representing these clients is to initiate foreclosure proceedings on their behalf. Defendant Sheryl

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Moulton, a California resident, was a property owner and member of both Lakeside Plaza and

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Salem Plaza and became delinquent on payments owed to the associations. As a result, Kern was

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asked to initiate foreclosure proceedings against Defendant’s properties.

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Defendant filed two motions which are exact copies of each other.
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Aggrieved by these actions, Moulton filed five separate lawsuits in federal court against

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Kern, inter alios. (Id. at 2–4). All claims in the first action were dismissed on November 29,

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2010. Between May of 2008 and February of 2011, Moulton filed four additional lawsuits in this

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District against Kern, all of which were dismissed. In the most recent action, Case No. 3:11-cv-

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00087-RCJ-RAM (“Moulton V”), Kern filed counterclaims against Moulton for abuse of

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process, business disparagement, and false light, but the case was dismissed on March 11, 2011

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before Kern’s counterclaims were adjudicated.

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Plaintiffs then filed the present diversity action in this Court on April 26, 2011, alleging

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various claims, including malicious prosecution. On February 10, 2015, the Court granted

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Plaintiffs’ motion for summary judgment and entered judgment in favor of Plaintiffs in the

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amount of $30,574.72 plus interest. Defendant now moves the Court to vacate all of the Court’s

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orders in the case and, particularly, its orders of May 11, 2012 (ECF No. 67) and February 10,

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2015 (ECF No. 102).

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II.

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LEGAL STANDARDS
Granting a motion to reconsider is an “extraordinary remedy, to be used sparingly in the

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interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934,

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945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 59.30[4]

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(3d ed. 2000)). A motion to reconsider “may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised earlier in the litigation.” Id.

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

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS,

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Fed. R. Civ. P. 60(b). In some cases, “other, highly

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unusual, circumstances” may warrant reconsideration.” ACandS, 5 F.3d at 1263. “A motion

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under Rule 60(b) must be made within a reasonable time . . . [and] no more than a year after the

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entry of the judgment or order.” Fed. R. Civ. P. 60(c)(1).

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III.

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ANALYSIS
Defendant asks the Court to set aside its orders pursuant to Rules 55 and 60(b). Rule 55

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does not apply because the Court did not enter default judgment against either party. Under Rule

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60(b), only the Court’s orders of February 10, 2015 (ECF Nos. 101, 102) are at issue because a

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party must make a motion within one year of an order, and Defendant filed her motion on

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February 9, 2016. All other orders were entered prior to February 9, 2015.

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Defendant argues Judge Jones should have recused himself from the case under 28

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U.S.C. § 455(b)(4) and § 455(a) because of an alleged financial interest in the case. Judge Jones

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has no interest in the controversy that would have disqualified him from adjudicating the case.

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Defendant also argues the Court lacks personal jurisdiction, but the Court has previously rejected

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Defendant’s argument and finds no reason to reconsider its decision. Finally, Defendant invokes

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the doctrine of judicial estoppel but offers no basis for applying it to the case. The Court denies

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the motion.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion to Vacate (ECF Nos. 105, 106) is
DENIED.
IT IS SO ORDERED.
Dated thisThisdaythof March, 2016.
DATED: 1st 10 day of March, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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