United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION RE: DKT. NO. 64
J. DAVILA, UNITED STATES DISTRICT JUDGE
Peng Chan (“Chan”) moves under Federal Rule of
Civil Procedure 59(e) for reconsideration of the Court's
Order Denying Plaintiff's Motion for Recusal and Motion
for Reconsideration (Dkt. No. 60) (“Order”). This
matter is suitable for decision without oral argument, and
the hearing scheduled for March 1, 2018 will be vacated. Civ.
L.R. 7-1(b). After carefully considering the parties'
submissions, the Court DENIES Chan's motion for the
Chan's motion is untimely. Rule 59(e) requires that
“[a] motion to alter or amend a judgment must be filed
no later than 28 days after the entry of the judgment.”
Chan filed his motion on October 17, 2017, which was
34 days after the Court entered judgment on
September 13, 2017. See Dkt. Nos. 61, 64.
even if the Court were to look past Chan's untimeliness
and consider his motion under Rule 59(e), his motion lacks
merit. A motion for reconsideration under Rule 59(e) is an
“extraordinary remedy” which “should not be
granted, absent highly unusual circumstances.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003) (internal quotation marks and citation omitted).
“There are four grounds upon which a Rule 59(e) motion
may be granted: 1) the motion is necessary to correct
manifest errors of law or fact upon which the judgment is
based; 2) the moving party presents newly discovered or
previously unavailable evidence; 3) the motion is necessary
to prevent manifest injustice; or 4) there is an intervening
change in controlling law.” Turner v. Burlington N.
Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003)
(internal quotation marks and citation omitted).
motion, Chan appears to focus on the “manifest errors
of law or fact” basis, identifying four alleged
“misapprehensions” which he contends are present
in the Court's Order. All of these lack merit. First,
Chan argues that the Court misunderstood the relief requested
in his Motion for Leave to File a Motion for Reconsideration
(Dkt. No. 56). Mot. 4. Not so. That motion sought
“leave to file a motion for reconsideration of [the
Court's order granting Defendant's Motion for a More
Definite Statement], ” Dkt. No. 56 at 3, and the Court
denied the same, Dkt. No. 60 at 2. Second, Chan claims that
the Court misidentified named Defendants because its order
referred to “defendant Verizon, Inc.” when
Verizon is not named as a defendant in Chan's Complaint.
Mot. 4. Setting aside that Chan himself termed Verizon, Inc.
a “Sub-Class A Defendant” in his Motion for
Recusal, Dkt. No. 55 at 5, the Court's passing use of
“defendant” in referring to Verizon, Inc. is not
an “error . . . upon which the judgment is
based.” Turner, 338 F.3d at 1063. As such, it
cannot serve as a basis for Chan's Rule 59(e) motion. As
to the final two “misapprehensions” identified by
Chan, Chan appears to take issue with the fact that the
Court's Order did not specifically address Chan's
arguments regarding certain individuals or associations which
Chan identified as “conflicts.” Mot. 4-5. This
too is not persuasive. The Court's Order addressed the
entirety of Chan's Motion for Recusal, including these
alleged conflicts. See Dkt. No. 60
(“Chan's motion is untimely . . . . Chan's
motion lacks merit.”). It need not specifically respond
to Chan's arguments line-by-line to confirm the same.
Accordingly, Chan fails to identify any grounds upon which
reconsideration under Rule 59(e) is warranted.
base, Chan's motion is a thinly veiled attempt to get the
Court to consider the same arguments that he raised in his
original Motion for Recusal and Motion for Leave.
Compare Dkt. Nos. 55, 56, with Dkt. No. 64.
However, "[a] motion for reconsideration is not a
vehicle by which a party may rehash arguments and facts that
the court has already considered in making the original
ruling." Villa v. Gipson, No.
1:13-cv-00814-AI-KSO HC, 2015 WL 5331618, at *2 (E.D. Cal.
Sept. 11, 2015). It may be that Chan disagrees with the
Court's Order, but reconsideration under Rule 59(e) is
not the proper recourse.
the Court notes that Chan also is not entitled to relief
under Rule 60(b). As Defendants-not Chan-point out, "the
court may construe an untimely motion for reconsideration
brought under Rule 59(e) as a motion based on Rule
60(b)." Aronson v. Dog Eat Dog Films, Inc., 738
F.Supp.2d 1104, 1120 (W.D. Wash. 2010); Mr. Graham Red
Squirrel v. Madigan, 954 F.2d 1441, 1463 n.35 (9th Cir.
1992). However, for the same reasons discussed above, there
are also no "extraordinary circumstances" here that
qualify Chan for relief under Rule 60(b). See Rule
60(b) (listing reasons under which a court may provide relief
from a final judgment); Phelps v. Alameida, 569 F.3d
1120, 1135 (9th Cir. 2009) ("The exercise of a
court's ample equitable power under Rule 60(b)(6) to
reconsider its judgment requires a showing of extraordinary
circumstances.") (internal quotation marks and citation
for the foregoing reasons, Chan's motion for
reconsideration of the Court's Order Denying Plaintiffs
Motion for Recusal and ...