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Joyce Ann Murrell v. Colleen Dennis

March 30, 2011

JOYCE ANN MURRELL
v.
COLLEEN DENNIS, ET AL.



The opinion of the court was delivered by: The Honorable Percy Anderson, United States District Judge

CIVIL MINUTES - GENERAL

Present:

Paul Songco Not Reported N/A

Deputy Clerk Court Reporter Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None

Proceedings: IN CHAMBERS - COURT ORDER

Before the Court is pro se plaintiff Joyce Ann Murrell's ("Plaintiff") First Amended Complaint ("FAC") and a "Clarification of Judicial Order on Show of Cause and Reconsideration of 42 U.S.C. §§ 1983, 1985, 1986." ("Clarification") (Docket No. 12.) The Court previously issued an order to show cause whether there is jurisdiction over this action, since the original complaint did not appear to state any viable federal claims. Plaintiff responded by asserting that there is federal question jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367. However, for various reasons discussed in the Court's Minute Order dated February 28, 2011, the Court dismissed all of Plaintiff's federal causes of action, giving her leave to amend her claim under the Crime Victims' Rights Act, 18 U.S.C. § 3771.*fn1 Plaintiffs' remaining federal causes of action were denied without leave to amend.

Plaintiff's Motion for Reconsideration

The Court construes the Clarification as a motion for reconsideration of the Court's Minute Order dated February 28, 2011, wherein the Court dismissed Plaintiff's claims under 42 U.S.C. §§ 1983, 1986, and 1986 without leave to amend. Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). A "motion for reconsideration 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 the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted); see also McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). A motion to reconsider "may not be used to raise arguments or present evidence for the first time when they reasonably could have been raised earlier in the litigation." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Under Local Rule 7-18 a motion to reconsider may only be brought if the moving party demonstrates:

(a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision.

The Court dismissed Plaintiff's claims under 42 U.S.C. § 1983, 1985, and 1986 as to the Santa Barbara and Ventura County Superior Courts because of the doctrine of judicial immunity. Plaintiff's claims against individual defendants Mary Lou Mankowski, Michael Mankowski, and James Nichols were dismissed because the statute of limitations had expired. Plaintiff's Clarification mostly repeats facts and arguments previously raised in her response to the Court's Order to Show Cause. As Local Rule 7-18 states that "[n]o motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion," such arguments do not justify reconsideration.

The only new arguments raised in the Clarification involve a Swiss police report which supposedly confirms that certain documents were fabricated or forged.*fn2 Even assuming that these arguments could not have been raised earlier in the litigation, they fail to justify reconsideration. Plaintiff first argues that there is original federal jurisdiction over her claims because these foreign documents will be introduced into evidence. Plaintiff has not provided any authority for this position, and the Court knows of none.

Plaintiff next argues that the statute of limitations has not yet expired on her claims against the individual defendants. Plaintiff's claim against the Mankowskis and Nichols was based on their successful application to have Plaintiff declared a vexatious litigant in 2004. According to the Plaintiff, the Mankowskis and Nichols used forged and fabricated evidence to obtain the vexatious litigant order. Plaintiff contends that she could not file her claim until she had obtained the Swiss police report, which she claims was not released until November 2009. In this manner, it appears that Plaintiff is attempting to argue that the statute of limitations should be equitably tolled. "Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim." Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th Cir. 2000). A district court generally has discretion to determine whether equitable tolling should apply. Id. In this case the Court declines to allow equitable tolling because it appears that Plaintiff's representation about the date of release of the Swiss police report is false. Plaintiff has previously filed another action against the Mankowskis, Joyce Ann Murrell v. Walter Theiler, et al. CV 09-3056 VBF (AGRx) ("Theiler Action"). The complaint in the Theiler Action, filed on January 27, 2009, attaches a copy of the Swiss police report, meaning that Plaintiff had a copy of the report prior to November 2009. Moreover, the complaint in the Theiler Action alleges that "[t]he report ...


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