The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING SUSAN JETTE'S MOTION FOR RECONSIDERATION AND GRANTING MORTGAGEIT'S MOTION TO DISMISS*fn1
On May 21, 2010, Plaintiff Susan Jette ("Susan") filed a motion for reconsideration under Local Rule 230(j), requesting this Court reconsider its order filed on May 7, 2010, which denied her motion to substitute brought under Federal Rule of Civil Procedure 25(a)(1) ("Rule 25(a)(1)"). (Docket No. 173.) Susan moved to be substituted in place of her mother, Plaintiff Barbara Ann Jette ("Barbara"), who passed away on September 25, 2009 during the pendency of this action. Susan's substitution motion, however, was denied because she did not provide evidence demonstrating that she was a proper party for substitution under Rule 25(a)(1).
Susan's pending motion requests reconsideration of that denial because she has located her mother's testamentary documents, which purportedly show she is a proper party for substitution under Rule 25(a)(1). Defendant MortgageIT, Inc. ("MortgageIT") opposes Susan's reconsideration motion, arguing Susan "has failed to establish that [the] testamentary documents are 'new evidence' for the purposes of reconsideration" and that Susan did not exercise reasonable diligence in attempting to locate her mother's testamentary documents prior to filing her substitution motion.*fn2 (Opp'n to Mot. for Reconsideration 1:8-10, 16-28.) MortgageIT also separately moves to dismiss Barbara's claims under Rule 25(a)(1). (Docket No. 174.) For the reasons stated below, Susan's motion for reconsideration is DENIED and MortgageIT's dismissal motion is GRANTED.
Plaintiffs Barbara Ann Jette and Susan Jette initiated this lawsuit on April 3, 2008. Barbara, however, passed away on September 25, 2009. MortgageIT filed a statement noting Barbara's death on February 24, 2010. Subsequently, Susan filed a motion under Rule 25(a)(1) on April 1, 2010, in which she stated she was the executor of her mother Barbara's estate and sought to be substituted in Barbara's place to continue litigating Barbara's claims.
Susan filed a declaration in support of her substitution motion, in which she declared that "[o]n June 11, 2008, [her] home was destroyed by a fire [and] [t]he fire destroyed all testamentary documents executed by [her] mother including her will and power of attorney." (Susan Jette Decl. Mar. 26, 2010 ¶ 6.) Susan further declared "[i]t was [her] mother's intention to appoint [her] as the executor and representative of her estate for all her property [and she has]... acted as the executor and representative of [her] mother's estate for all her property." (Id. ¶ 7.)
Susan's substitution motion was denied in an order filed on May 7, 2010, because Susan's "averments... d[id] not demonstrate that, under California law, she [was] either the 'successor in interest' or 'legal representative' for her mother and a proper party for substitution." (Docket No. 172 3:5-8.)
Susan moved for reconsideration of this May 7, 2010 order on May 21, 2010, based on her declaration that she "accidentally" discovered her mother's last will and testament and power of attorney on May 6, 2010. (Susan Jette Decl. May 20, 2010 ¶¶ 6, 12-13.) Susan explains in the declaration attached to her reconsideration motion that prior to filing her substitution motion, she "had believed that [her mother's] original [last will and testament]... were destroyed by [a] fire" on property where she lived with her mother; however, Susan also declares she decided to look through all [her] mother's belongings to confirm [her] suspicion that no copies existed." (Id. ¶¶ 8, 9). Susan declares she "searched through all the banker boxes, file cabinets and file folders [and] did not find the original or copies [of her mother's testamentary documents,] and informed [her] lawyer that he would have to file the [substitution] motion without the testamentary documents." (Id. ¶ 10.)
However, Susan also declares that "[o]nce [she] started sifting through [her] mother's belongings [she] never really stopped and continued to go through everything that had survived the fire." (Id. ¶ 11.) Susan further explains that after filing her substitution motion, "she accidentally happened upon" her mother's testamentary documents "in a woman's make-up kit in the storage shed" outside of the house she had shared with her mother. (Id. ¶¶ 6, 12-13.) Susan declares that "[p]ursuant to [her mother's] last will and testament [she] was appointed as the Independent Executor... and ha[s] authority to substitute in for [her] mother...." (Id. ¶ 17.)
Susan seeks reconsideration under the Court's inherent power and Local Rule 230(j). However, there is no need to decide whether Susan's motion can be decided under the Court's inherent authority since Federal Rule of Civil Procedure 60(b)(2) ("Rule 60(b)(2)") states in pertinent part: "On motion and just terms, the court may relieve a party... from a[n]... order... for newly discovered evidence, that with reasonable diligence, could not have been discovered...." "Relief from [an order] on the basis of newly discovered evidence is warranted if (1) the moving party can show the evidence relied on in fact constitutes 'newly discovered evidence' within the meaning of Rule 60(b); (2) the moving party exercised due diligence to discover this evidence; and (3) the newly discovered evidence must be of 'such magnitude that production of it earlier would have been likely to change the disposition of the [motion]." Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)); see also Frederick S. Wyle Prof'l Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985) (stating that a party moving under Rule 60(b)(2) "is obliged to show that [the] evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence at the hearing"). However, "[e]vidence is not newly discovered... if it was in the moving party's possession at the time of [the initial substitution motion] or could have been discovered with reasonable diligence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 n.6 (9th Cir. 1994) (citing Coastal Transfer, 833 F.2d at 211).
Federal Rule of Civil Procedure 60(b)(6) ("Rule 60(b)(6)") also allows for reconsideration of a final order for "any other reason justifying relief...." However, decisions "are not often set aside under Rule 60(b)(6). Rather, the Rule is used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous [decision]." Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1033 (9th Cir. 2006). Therefore, "a party who moves for relief [under Rule 60(b)(6)] must demonstrate both injury and circumstances beyond [her] control that prevented [her] from proceeding with the action in proper fashion." Id. (quotations and citations omitted).
Further, Local Rule 230(j) requires that a party moving for reconsideration provide an affidavit or brief "setting forth... what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion." E.D. Cal. R. 230(j). Local Rule 230(j), however, does not provide an independent basis for seeking ...