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Belinda K. and J.H., Her Minor Son v. Yolanda Baldovinos


August 7, 2012


The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California


Petitioner Belinda K. ("Petitioner"), proceeding pro se, moves pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) for reconsideration of this Court's Order Denying Petitioner's 19 Motion for Summary Judgment and Granting Respondents' Cross-Motion for Summary Judgment. 20 See ECF No. 241 ("Motion for Reconsideration"). The Court finds this matter appropriate for 21 resolution without oral argument and hereby VACATES the hearing set for August 9, 2012. See 22 Civ. L. R. 7-1(b). Having considered the parties' submissions and the Court's prior ruling, the 23 Court DENIES Petitioner's motion for reconsideration. 24


This case concerns state court dependency proceedings concerning Petitioner's son, J.H., an Indian child as defined by the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. 27 ("ICWA"). With the assistance of appointed pro bono counsel, Petitioner brought this petition 28 pursuant to 25 U.S.C. § 1914, alleging various violations of ICWA in her son's dependency proceedings and seeking invalidation of several state court orders. See ECF No. 73 (Order 2 Appointing Pro Bono Counsel); ECF 170 ("First Am. Petition"). On February 13, 2012, the Court 3 issued an Order Denying Petitioner's Motion for Summary Judgment and Granting Respondents' 4 Motion for Summary Judgment ("Summary Judgment Order"), disposing of the entire action in 5 full.*fn1 See ECF No. 232. The facts of this case can be found in the Court's February 13, 2012 6 Pursuant to the Court's February 13, 2012 Order, Judgment was entered in favor of Respondents and against Petitioner on February 21, 2012, and the case was terminated. That same 9 day, Petitioner, proceeding pro se, filed a Notice of Appeal to the Ninth Circuit of the Summary 10 Petitioner, proceeding pro se, timely filed a motion for relief from judgment under Rules 59(e) and 60(b), prompting the Ninth Circuit to issue an order holding the appellate proceedings in abeyance 13 pending this Court's resolution of the motion for reconsideration. See ECF No. 241 (Motion for 14 Reconsideration); ECF No. 269 (Ninth Cir. Order). 15

17 judicial notice, as well as several administrative motions to file documents under seal. 18

240 (sealing motion); ECF No. 241 (motion for reconsideration filed under seal in its entirety); (2) 20 a request for judicial notice in support of her motion for reconsideration, see ECF No. 255 (sealing 21 motion); ECF No. 259 (Request for Judicial Notice ("RJN")); and (3) a second request for judicial 22 notice in support of her motion for reconsideration, see ECF No. 253 (sealing motion); ECF No. 23

Summary Judgment Order, see ECF No. 232 & 233, and will not be recounted here. 7

Judgment Order and All Related Interlocutory Orders. ECF No. 236. On February 27, 2012,


In connection with her motion for reconsideration, Petitioner has filed two requests for Specifically, Petitioner seeks to file under seal: (1) her motion for reconsideration, see ECF No. 19 257 (Second Request for Judicial Notice ("2d RJN")).*fn2

2 for Judicial Notice conform to the Court's prior rulings in this case concerning redactions, see ECF 3 No. 222, and are narrowly tailored to seal only the minor's identity and confidential information 4 that would reasonably lead to the minor's identity. Accordingly, Petitioner's motions to file these 5 documents under seal (ECF Nos. 255 and 253) are GRANTED. Petitioner shall publicly re-file 6

However, Petitioner's request to file her motion for reconsideration under seal in its entirety 8 is overbroad and is not narrowly tailored to seal only the minor's identity and confidential 9 information that would reasonably lead to the minor's identity. Accordingly, Petitioner's motion to 10 file her motion for reconsideration under seal (ECF No. 240) is DENIED without prejudice. Petitioner shall submit a new, narrowly tailored motion to file portions of her motion for reconsideration under seal within 14 days of the date of this Order. Petitioner must comply with 13 the requirements set forth in Civil Local Rule 79-5. 14 A motion for reconsideration of summary judgment may appropriately be brought under 16 either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 59(e), 17 F.2d 803, 805 (9th Cir. 1989), cert. denied, 493 U.S. 868 (1989)). The district court generally 19 applies the same analysis under both rules, and its decision is reviewed for abuse of discretion. See 20 60(b)); Fuller, 950 F.2d at 1441 (discussing Rule 59(e)). 22

23 newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 24 or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, Multnomah Cnty., 25

Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted); see Snider v. Greater 26

Nev. LLC, 426 F. App'x 493, 495 (9th Cir. 2011). Under Rule 60(b), reconsideration is permitted 27 upon a showing of: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 28 evidence that, with reasonable diligence, could not have been discovered in time to move for a new

Petitioner's proposed redactions of her Request for Judicial Notice and her Second Request

ECF Nos. 259 and 257 in their redacted form. 7


60(b); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citing Taylor v. Knapp, 871 18

Fidelity Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir. 2004) (discussing Rule 21

Under Rule 59(e), "reconsideration is appropriate if the district court (1) is presented with trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), 2 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment 3 has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed 4 or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies 5 relief." Fed. R. Civ. P. 60(b). Relief under the sixth category "requires a finding of 'extraordinary 6 circumstances.'" Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (quoting McConnell 7

Here, Petitioner has filed a lengthy motion challenging the Court's Summary Judgment Order.*fn3 Petitioner seeks reconsideration and relief from judgment on the following grounds: (1) 10 the Court's Summary Judgment Order relied on inadmissible hearsay and was not supported by 11 injustice; (3) California's Welfare and Institutions Code ("WIC") §§ 281 and 355 violate the Sixth 13 v. MEBA Med. & Benefits Plan, 759 F.2d 1401, 1407 (9th Cir. 1985)). 8

; (2) Respondents misrepresented the law and the facts, sufficient evidence causing manifest

Amendment's Confrontation Clause; and (4) Petitioner's pro bono counsel provided ineffective 14 assistance of counsel. 15 Isaacson and Linda Fuchs and the deposition of Cheryl Smith (ECF No. 242), which were offered 18 by Respondents in opposition to Petitioner's original summary judgment motion, are untimely, and 19 the motion to strike is therefore DENIED. Petitioner could have raised these evidentiary objections 20 earlier but did not do so. See Civ. L. R. 7-3 (providing that evidentiary and procedural objections 21 to any motion must be raised in the opposition or the reply, as appropriate). 22

None of Petitioner's grounds for reconsideration meet the standard for relief under Rules

59(e) and 60(b). First, Petitioner's objections to and motion to strike the declarations of Geri 17

Petitioner next asserts that Respondents misrepresented the law and the facts, and that the

Court's summary judgment ruling is not supported by sufficient evidence. Petitioner's arguments 24 are either duplicative of arguments already previously made and carefully considered by the Court 25 in its summary judgment ruling, or are based on facts and argument that could have been, but were 26 not, raised during the summary judgment proceedings. With the exception of Exhibit G to 27

Petitioner's Second RJN, all of the exhibits that Petitioner submits in support of her motion for 2 reconsideration were previously available and therefore are not proper grounds for reconsideration. 3

November 2011 and February 2012, which were not previously available, but these exhibits do not 5 alter the Court's analysis of the Juvenile Court's January 2, 2007 Jurisdictional Order, April 5, 6

Accordingly, the Court declines to take judicial notice of these documents. "[A] party that fails to 8 introduce facts in a motion or opposition cannot introduce them later in a motion to amend [under 9 Exhibit G to the Second RJN consists of four minute orders from Juvenile Court between 4 2007 Disposition Order, or January 14, 2008 Order Terminating Family Reunification Services. 7

Rule 59(e)] by claiming that they constitute 'newly discovered evidence' unless they were 10 previously unavailable." Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)

13 right to confront witnesses against her. As an initial matter, the Court notes that "[t]he protections 14 provided by the Sixth Amendment are explicitly confined to 'criminal prosecutions.'" Austin v. 15

Amendment is inapplicable. More importantly, however, a motion for reconsideration under Rules 17 59(e) and 60(b) is an improper vehicle for bringing new claims not previously raised. See Willis v. 18 Mullins, 809 F. Supp. 2d 1227, 1233 (E.D. Cal. 2011) ("As a general matter, a motion to reconsider 19 is not a vehicle for parties to make new arguments that could have been raised in their original 20 briefs.") (citing Zimmerman, 255 F.3d at, 740). "A district court does not abuse its discretion when 21 it disregards legal arguments made for the first time on a motion to amend." Zimmerman, 255 F.3d 22 at 740 (citing Rosenfeld v. U.S. Dep't of Justice, 57 F.3d 803, 811 (9th Cir. 1995)); see also Fed. 23

Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986) ("[Rule 59 and Rule 60] motions 24 cannot be used to raise arguments which could, and should, have been made before the judgment 25 issued. Moreover they cannot be used to argue a case under a new legal theory.") (citations 26 omitted). The Court therefore declines to consider Petitioner's new constitutional claim based on 27 the Sixth Amendment's Confrontation Clause. 28

(citations omitted).

Third, Petitioner raises a new claim that WIC §§ 281 and 355 violate her Sixth Amendment United States, 509 U.S. 602, 608 (1993). This matter is a civil proceeding, and therefore the Sixth Finally, Petitioner's fourth and final ground for reconsideration is without merit. Petitioner 2 was well represented in this matter by Court-appointed pro bono counsel who vigorously litigated 3 this case and zealously advocated on Petitioner's behalf for her requested relief. Petitioner has not 4 identified any deficiencies in her counsel's performance that render the Court's disposition 5 manifestly unjust. 6


For the foregoing reasons, Petitioner's motion for reconsideration and motion to alter or amend judgment pursuant to Rules 59(e) and 60(b) is DENIED. 9


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