Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Broncel v. H & R Transport

April 27, 2010

PRZEMYSLAW BRONCEL, PLAINTIFF,
v.
H & R TRANSPORT, LTD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION

(Document No. 55)

This action arises out of a motor vehicle accident that occurred on February 3, 2006, in Merced County. Defendant H&R Transport, LTD ("Defendant") was operating a tractor trailer, which was involved in a collision with plaintiff Przemyslaw Broncel ("Plaintiff"). On March 13, 2008, Plaintiff filed a personal injury action in the California Superior Court, County of Merced. On April 9, 2008, Defendant removed to this Court. On July 31, 2009, Defendant filed a Motion for Summary Judgment asking this Court to set aside the Merced State Court's March 24, 2008 Nunc Pro Tunc order ("State Court Order").

On January 14, 2010, the court denied Defendant's Motion for Summary Judgment because Defendant had not cited authority that would authorize the relief they requested under a motion for summary judgment standard. The court further reasoned that the appropriate remedy appeared to be a motion for reconsideration of the State Court Order.

On January 27, 2010, Defendant filed a motion for reconsideration of the State Court Order. Defendant argues that the State Court Order, which allowed Plaintiff to backdate his complaint to January 28, 2008, is erroneous under California state law. For the reasons stated below, the Court agrees and Defendant's Motion for Reconsideration will be granted.

HISTORY*fn1

On January 28, 2008, Plaintiff's original counsel, Sonia Perez-Chaisson ("Chaisson"), provided Official Payments Corporation ("OPC"), an automated fax filing service, with a complaint and summons for OPC to file with the Merced County Superior Court.*fn2 See Plaintiff's Ex Parte Application for Nunc Pro Tunc Motion at page 1. On January 28, 2008, OPC rejected the filing of Plaintiff's complaint. Id.; see also Declaration of Elizabeth Gregg, director of OPC's client services ¶7 ("Gregg Decl."). OPC rejected the complaint because Plaintiff did not include a separate cover sheet that is required by OPC when fax filing a summons. See Gregg Decl. ¶7. OPC faxed a rejection notice to Plaintiff's counsel. See Gregg Decl. ¶7.

Chaisson alleges that she was unfamiliar with OPC's separate cover sheet requirement. See Plaintiff's Memorandum in Support of Nunc Pro Tunc Motion at page 1. On or about March 12, 2008, Chaisson inquired with the Merced County Superior Court as to the status of the complaint and was advised that it was never filed with the court. See Plaintiff's Nunc Pro Tunc Motion at pages 1-2. On March 14, 2008, Chaisson filed the complaint in the Clerk's Office. On March 17, 2008, Chaisson filed an ex parte nunc pro tunc motion in the Merced County Superior Court seeking to backdate the filing date of the complaint to January 28, 2008, which would put Plaintiff within the two-year statute of limitations for a personal injury action. Plaintiff argued that the act of delivering the complaint to OPC constituted the act of filing the complaint. See Plaintiff's Memorandum in Support of Nunc Pro Tunc Motion at page 4. Defendant contends that Plaintiff failed to give Defendant proper notice of the ex parte hearing and service of the ex parte application. See Defendant's Motion for Reconsideration at page 2. Defendant asserts that it received the ex parte application documents via express mail on March 31, 2008, seven days after the ex parte hearing, through their agent for service of process in Alberta, Canada. See Defendant's Motion for Reconsideration at page 3. On March 19, 2008, Chaisson signed a Declaration of Notice, which purported to give notice of the ex parte hearing, but it provides no date of hearing, and no proof of service. See Exhibit E to Joseph Low Declaration ("Low Decl."). Plaintiff alleges that, on or about March 18, 2008, Chaisson telephoned Defendant H&R Transport's agent for service of process, Steve Evan, and spoke with his secretary about Plaintiff's intent to move by an ex parte application. See Exhibit E to Low Decl. On March 24, 2008, the Merced County Superior Court granted the unopposed motion, and ordered the backdating of the complaint to January 28, 2008.

LEGAL STANDARD

"When a case is removed, federal court takes it as though everything done in state court had in fact been done in federal court." Munsey v. Testworth Laboratories, 227 F.3d 902, 903 (6th Cir. 1955); Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir. 1963). By statute, "injunctions, orders, and other proceedings had in such [state] action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. §1450. "In sum, whenever a case is removed, interlocutory state court orders are transformed by operation of 28 U.S.C. § 1450 into orders of the federal district court to which the action is removed." See In re Diet Drugs, 282 F.3d 220, 232, n.7 (3rd Cir. 2002) "The authority of a district judge to reconsider a previous ruling in the same litigation, whether a ruling made by him or by a district judge previously presiding in the case, including (because the case has been transferred) a judge of a different court, is governed by the doctrine of the law of the case, which authorizes such reconsideration if there is a compelling reason, such as a change in, or clarification of, law that makes clear that the earlier ruling was erroneous." Santamarina v. Sears, Roebuck & Co. 466 F.3d 570, 571-72 (7th Cir. 2006).

A court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). A motion for reconsideration, however, should not be granted absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in controlling law. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

Moreover, when filing a motion for reconsideration, Local Rule 78-230(k) requires a party to show the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

DISCUSSION

Defendant's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.