United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION TO HAVE THE
COURT REMEDY THE PREJUDICE CAUSED TO PLAINTIFF DUE TO THE
CLERK'S OFFICE NEGLIGENCE [Re: ECF 253]
LABSON FREEMAN United States District Judge
April 28, 2017, Plaintiff Pamela Williams filed a
“motion to have the court remedy the prejudice caused
to plaintiff due to the clerk's office negligence.”
Mot., ECF 253. Prior to filing this motion, Ms. Williams also
filed a notice of appeal to the Ninth Circuit. ECF 243.
“[t]he filing of a notice of appeal divests the
district court of jurisdiction.” Gould v. Mut. Life
Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986).
However, as it concerns the post-trial motions listed in FRAP
4(a)(4)(A), “the pendency of an appeal does not affect
the district court's power to grant . . . relief.”
Stone v. INS, 514 U.S. 386, 401 (1995). These types
of post-trial motions “render the underlying judgment
nonfinal both when filed before an appeal is taken (thus
tolling the time for taking an appeal), and when filed after
the notice of appeal (thus divesting the appellate court of
jurisdiction).” Id. at 402-03; see
Order from the Ninth Circuit, Broussard v. Charvat,
No. 5:13-cv-04878-LHK, ECF 28, at 2 (holding that the
district court retained jurisdiction even though a notice of
appeal was filed before the post-trial motion).
Rule of Appellate Procedure 4(a)(4)(A) lists six motions: a
motion for judgment, pursuant to Fed.R.Civ.P. 50(b); a motion
to amend or make additional factual findings, pursuant to
Fed.R.Civ.P. 52(b); a motion for attorney's fees,
pursuant to Fed.R.Civ.P. 54; a motion to alter or amend the
judgment, pursuant to Fed.R.Civ.P. 59(e); a motion for new
trial, pursuant to Fed.R.Civ.P. 59(a); and a motion for
relief, pursuant to Fed.R.Civ.P. 60. Here, the only
potentially applicable motions are a motion to amend or make
additional factual findings, a motion to alter or amend the
judgment, and a motion for relief from a final judgment.
contends that contrary to the Court's finding, she did
submit a declaration with her opposition to Defendants'
motions for summary judgment, which “would have
provided this court with the facts that would have resulted
in a denial of the summary judgment motion[s].”
See Mot. 2; see also Order Granting
Defendants' Motions for Summary Judgment (“Summary
Judgment Order”) 2 n.4, 18 n.13, ECF 237. Liberally
construed, Plaintiff appears to be asking for reconsideration
pursuant to Fed.R.Civ.P. 52(b), 59(e), or 60.
because any such motions would be untimely, the Court DENIES
Williams' motion. First, Plaintiffs motion was filed more
than 28 days from the entry of judgment, and is therefore
untimely pursuant to Fed.R.Civ.P. 52(b) and 59(e).
See ECF 238 (judgment entered February 3, 2017).
Second, to the extent Williams is seeking relief pursuant to
Rule 60, the Court cannot conclude that she filed her motion
in a reasonable time given Williams' ample notice that
the Court did not have in its possession the declaration of
which she speaks. Fed.R.Civ.P. 60(c) (requiring that a motion
under Rule 60(b) be made within a “reasonable
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.” Lemoge v. United
States, 587 F.3d 1188, 1196-97 (9th Cir. 2009) (citation
and quotation marks omitted). Here, the second and third
factors weigh heavily in favor of finding that Williams did
not make this motion, to the extent it may be construed as a
motion under Rule 60(b), “within a reasonable
time.” First, Williams does not explain why she did not
bring this motion or point out the Court's alleged
“negligence” at an earlier date. Second, Williams
first learned that the undersigned did not possess a
substantive declaration from her during the hearing on
Defendants' motions for summary judgment more than four
months before she filed the instant motion. Indeed, during
the January 5, 2017, hearing, the Court noted several times
that it had not received any substantive declaration from Ms.
Williams. The Court also asked Ms. Williams where it could
find her version of the facts in the record. Nevertheless,
Williams could not direct the Court to any evidence in the
record. The Court cites the following exchange as an example:
Ms. Williams: The Defendants relied on three customers that
they claim were customers of Olympus or Gyrus. These were not
customers of Olympus or Gyrus, nor had I made any sales
presentations to the three surgeons who allegedly complained
against me. They were not my customers . . . .
The Court: I don't remember seeing any evidence on that
in your papers. I can't consider argument now, so if you
can point that out to me - - I read this, but I always want
to know if I've missed something. And so if you can show
me a declaration that you've submitted with those facts,
I would be glad to consider it.
Ms. Williams: Okay. In the - - well, Your Honor, on my
objections, I stated that I objected to the - - to the
declarations of the customers as hearsay. They were not
verified. Because, again, I didn't believe that these
customers would actually make any comments or statements
about me or my performance when they had no point of
reference because I never presented any products - - I never
made any appointments with these customers to present any
Hr'g Tr. 7:17-8:12, ECF 235. Later during the hearing,
the Court explicitly stated “I didn't get a
declaration from you, except to indicate - - to submit the
documents. So I don't have this evidence.”
Id. at 24:13-15; see also Id. at 24:22-25
(“[Y]ou're giving me facts that needed to be in a
declaration of yours, and I didn't get that declaration.
So I'm not going to hear anything more on additional
facts because I can't consider them.”). Ms.
Williams acknowledged that the Court had no such declaration.
Id. at 24:16 (responding “[r]ight” to
the Court's comments).
Williams was again alerted of the fact that the undersigned
had not received a declaration laying out her version of the
facts in the Court's ruling on Defendants' summary
judgment motions, as Ms. Williams emphasizes in the present
motion. Mot. 2; see Summary Judgment Order 2 n.4
(“In her opposition, Plaintiff argues that the decision
to split the territory was racially motivated and that
Caucasian Territory Managers with territories the same size
or larger were not split. Ms. Williams, however, provides no
evidence to support this argument, and she did not provide a
declaration stating the facts despite the instructions on the
pro se form to submit a declaration with the facts
along with the motion.” (citations omitted));
id. at 18 n.13 (“At the hearing, Williams
argued that the three customers were not customers of Olympus
or Gyrus and the three surgeons who complained about her were
not her customers. However, Williams provides no evidence of
this, nor did she submit a declaration laying out her version
of the facts as instructed to do by the pro se
form.” (citations omitted)).
this knowledge, Ms. Williams did not file the instant motion
until more than four months after the hearing and three
months after the Court issued its ruling and entered
judgment. Accordingly, the Court concludes that this motion
was not filed within a reasonable time. See Plotkin v.
Pacific Tel. & Tel. Co.,688 F.2d 1291, 1293 n.2
(9th Cir. 1982) (agreeing that Rule 60(b) motion did not
comply with the reasonable time requirement where the motion
was filed 18 days after the expiration of the time for appeal
of the order); Zamora v. Wells Fargo Bank, N.A., No.
13-cv-134, 2014 WL 2093763, at *3 (N.D. Cal. May 19, 2014)
(finding that an unexplained delay of four months was
unreasonable under Rule 60(b)); McPhatter v. Ryan,
No. CV 11-814, 2013 WL 428280, at *5 (D. Ariz. Feb. 4, 2013)
(unexplained delay of four months and five days justified
denying Rule 60(b)(1) motion as untimely, as did fact that
nothing impeded plaintiffs awareness of the grounds relied
upon); Regan v. Frank, No. 06-66, 2008 WL 508067, at
*3-4 (D. Haw. Feb. 26, 2008) (denial of plaintiff s Rule
60(b)(1) and (6) motion as untimely justified where plaintiff
waited over four months to file it, and “provided no
reasonable justification for his continued ...