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Sedell v. Wells Fargo of California Insurance Services, Inc.

United States District Court, N.D. California, Oakland Division

March 20, 2014

STEVEN H. SEDELL, Plaintiff,
WELLS FARGO OF CALIFORNIA INSURANCE SERVICES, INC., a California Corporation, ACORDIA OF CALIFORNIA INSURANCE SERVICES, INC., a California Corporation, DAVID J. ZUERCHER, an individual, H. DAVID WOOD, an individual, BRIAN M. HETHERINGTON, an individual, SAMUEL L. JONES III, an individual, MARK W. STOKES, an individual, PAMELA HENDRICKS, an individual, and DOES 1-100, inclusive, Defendants.



On June 22, 2010, Steven H. Sedell ("Plaintiff") commenced the instant action against Defendants alleging seven claims for relief arising out of his termination from Wells Fargo Insurance Services, USA, Inc. ("Wells Fargo") in November 2009. See Compl., Dkt. 1. On July 23, 2013, the Court granted summary judgment in favor of Defendants Wells Fargo, Brian M. Hetherington ("Hetherington"), H. David Wood, Samuel L. Jones III, Mark W. Stokes, and Pamela Hendricks (collectively, "Defendants"). Dkt. 60. On that same day, the Court entered final judgment in favor of Defendants. Dkt. 61.

The parties are presently before the Court on Plaintiff's motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Dkt. 64. Wells Fargo opposes the motion. Dkt. 66. Hetherington filed a joinder to Wells Fargo's opposition. Dkt. 67. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES Plaintiff's motion for relief from judgment, for the reasons stated below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).


Under Rule 60(b), a party may seek relief from judgment and to re-open his case in limited circumstances, "including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby , 545 U.S. 524, 528 (2005). Rule 60(b) provides that:

[T]he court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed.R.Civ.P. 60(b). "Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court." Casey v. Albertson's Inc. , 362 F.3d 1254, 1257 (9th Cir. 2004).


Plaintiff moves for relief from judgment as to Wells Fargo and Hetherington under Rule 60(b) on the following grounds: (1) newly discovered evidence; (2) fraud in the form of concealment; and (3) "any other reason justifying relief that the court deems just and proper." Pl.'s Mot. at 4.

A. Timeliness

Before turning to the merits of Plaintiff's motion for relief from judgment, the Court must determine whether the motion is timely. Wells Fargo contends that Plaintiff's motion should be denied because it was not filed within a "reasonable time" after entry of final judgment in favor of Defendants.

Rule 60(c)(1) provides that "[a] motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order...." "A Rule 60(b)(1) motion filed within the one-year limitation [period], however, may still be barred under the reasonable-time limitation, depending on relevant circumstances." See Woodfin Suite Hotels, LLC v. City of Emeryville, 2008 WL 724105, at *6 (N.D. Cal. 2008) (Armstrong, J.). "What constitutes reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to other parties." Ashford v. Steuart , 657 F.2d 1053, 1055 (9th Cir. 1981). Where the time to appeal has passed, "the interest in finality must be given great weight" in determining whether a Rule 60(b) motion was filed within a "reasonable time." Id.

Here, Plaintiff filed the instant motion for relief from judgment 361 days after final judgment was entered in favor of Defendants, long after the time to appeal had passed. According to Plaintiff, his motion is timely because it was filed within one year after final judgment was entered, and because he could not have brought it any earlier given that "new facts" were only discovered "in late May to early June" 2013. See Pl.'s Mot. at 5; Pl.'s Reply at 2. In support of his position, Plaintiff relies exclusively on the declaration of his counsel, Steven Zavodnick ("Zavodnick"), which was submitted for the first time with his reply brief. See Zavodnick Decl., Dkt. 69-1. Ordinarily, the Court does not consider new evidence presented in a reply brief. See Tovar v. U.S. Postal Serv. , 3 F.3d 1271, 1273 n. 3 (9th Cir. 1993); Whittlestone, Inc. v. Handi-Craft Co., 2012 WL 3939629, at *8 (N.D. Cal. 2012) (Armstrong, J.). However, because neither Wells Fargo nor Hetherington objects to this evidence, the Court will consider it.

In his declaration, Zavodnick avers that, in the course of representing an insurance executive formerly employed by ABD Insurance Services, Inc. ("ABD"), [2] he discovered that Hetherington is now the CEO of a "reformulated" ABD which "exists in several legal forms within and without [Wells Fargo], " and that there is pending litigation between Wells Fargo and ABD and Hetherington. See Zavodnick Decl. ¶¶ 2-5, 7. Zavodnick further avers that "[s]ince the predication of [Plaintiff's] wrongful termination case against [Wells Fargo] was essentially that []he was wrongfully terminated by [Wells Fargo] actually not for anything he did or didn't do at [Wells Fargo], but rather was rooted and based on his prior employment with ABD[, ] which resulted in [his] constructive termination, these new facts... give rise to th[e] instant motion." Id . ¶ 8. According to Zavodnick, it took him "60 days since discovering the separate existence of ABD and Hetherington's involvement with [ABD] to investigate and research the facts necessary to prepare th[e]... [instant] motion." Id . ¶ 9. Plaintiff contends that the "new evidence" he discovered ...

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