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Diraffael v. California Army National Guard

United States District Court, C.D. California

April 21, 2015



DEAN D. PREGERSON, District Judge.

Presently before the Court is Plaintiff's Motion to Alter or Amend the Judgment. Having considered the submissions of the parties, [1] the Court adopts the following order.


Plaintiff served in the Army National Guard ("ARG") or the California Army National Guard ("CAARNG") for approximately twenty-one years. (Petition at 1; Opp. to Pl.'s First Am. Mot. at 2.) Officers of Plaintiff's rank are considered for selective retention by selective retention boards ("SRBs") after 20 years of service pursuant to National Guard Regulation ("NGR") 635-102. (Decl. Williamson, Defs.' Mot. to Dismiss, Dkt. No. 11.) In August 2012, a SRB declined to retain Plaintiff in the CAARNG after reviewing his service record. (Pet. at 1, 7-8; Opp. at 2.) On July 13, 2013, Plaintiff's Brigade Commander formally notified Plaintiff of his non-selection for retention. (Pet. at 7.) Plaintiff's Brigade Commander informed him that Defendant Haskins, acting on behalf of the Adjutant General, Defendant Baldwin, would separate Plaintiff from service on September 30, 2013. (Pet. at 3, 7; Opp. at 2.) Plaintiff was thereafter separated from service and honorably discharged, and his Federal recognition was withdrawn. (First Am. Mot. Ex. at 3; Opp. at 2.)

On August 13, 2013, Plaintiff filed a "Petition for Peremptory Writ of Mandate" in a California Superior Court in Los Angeles, seeking an order vacating the notice of his non-selection. (Dkt. No. 1.) On October 17, 2013, Defendant Baldwin removed the case to federal court under 28 U.S.C. § 1442a. (Dkt. No. 1.) Apart from Defendants' Answer and some technical orders, there was no movement in the case until Defendants' Motion to Dismiss, filed on December 4, 2014. (Dkt. No. 11.) Plaintiff did not oppose the motion, and the Court issued an Order Granting Motion to Dismiss for Lack of Prosecution ("Order") on January 6, 2015. (Dkt. No. 13.) The Court stated in the "Background" section of that order that "Defendant Baldwin is a Major General in the United States Army National Guard, and is sued in that capacity." (Id. at 2, n.1.) Jurisdiction was not otherwise addressed in Defendants' motion or in the order.

On February 3, 2015, eighteen months after Plaintiff filed his initial petition, almost two months after Defendants filed their motion to dismiss, and twenty-eight days after the Court issued its Order dismissing the case, Plaintiff filed his original Motion to Alter or Amend Judgment.[2] Plaintiff subsequently filed a "First Amended Motion" on March 20, 2015. (Dkt. No. 16.)[3]


A motion to alter or amend the judgment "may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Exxon Shipping Co. V. Baker, 554 U.S. 471, 485 n.5 (2008). Amendment or alteration [of judgment] is only appropriate under Rule 59(e) if "(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." Zimmerman v. City of Oakland , 255 F.3d 734, 740 (9th Cir. 2001) (citing School Dist. No. 1J, Multnomah Cnty v. ACandS, Inc. , 5 F.3d 1255, 1263 (9th Cir. 1993). "Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances, unless [one of the above three criteria is met]." 389 Orange St. Partners v. Arnold , 179 F.3d 656, 665 (9th Cir. 1999).

Additionally, a district court must remand to the state any case over which it does not have subject matter jurisdiction. "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The removal statute is strictly construed against removal jurisdiction, and any doubts about jurisdiction are resolved in favor of remand. Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992).


As an initial matter, Plaintiff objects to the Court's Order dismissing the case for lack of prosecution "even though the non-removing party timely made the appropriate filings...." (First Am. Mot. at 2.) In fact, Plaintiff filed no papers and did not otherwise meaningfully participate in his case during the fifteen months between removal and dismissal. Although he asserts that Defendants improperly removed the case to this Court under 28 U.S.C. § 1442a, he filed no motion to remand. Although he asserts that the order dismissing his case was improper, he did not oppose the motion to dismiss. Instead, Plaintiff waited until after entry of the order granting dismissal to take action. Yet Plaintiff's Motion does not raise any argument that he could not have raised prior to the entry of the order. As Plaintiff himself acknowledges, "[m]any of the arguments made in this motion were previously raised in the body of the removed Petition." (First Am. Mot. at 4.)

Plaintiff explains that he failed to prosecute his case because he believed that litigation before this Court was futile, as the Court had not, according to him, heard his arguments in his prior case. (First Am. Mot. at 20-25.) Such a belief does not excuse a failure to prosecute a case. Specifically as to his jurisdictional argument, Plaintiff argues that because the Court did not address his jurisdictional argument in another case, it would have been futile to pursue it in this case. But jurisdiction must be analyzed anew in each case; there usually is no carrying-over of jurisdictional arguments, one way or another, from case to case. Plaintiff also argues that the Court was incapable of hearing his arguments, which appears to be an allegation of bias. (First Am. Mot. at 23.) But he also did not file a motion to disqualify the judge.

In short, Plaintiff could have taken any number of steps to have his jurisdictional argument in this case heard before now. He did not, and any delay in resolving the jurisdictional question is a delay that Plaintiff has imposed on himself.

Nevertheless, subject matter jurisdiction cannot be waived, even by a complete failure to prosecute, and it may be challenged at any time prior to final judgment. Therefore, the Court will address Plaintiff's Motion to Alter ...

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