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Castro v. City of Union City

United States District Court, N.D. California

April 3, 2018

GARY CASTRO, Plaintiff,
v.
CITY OF UNION CITY, et al., Defendants.

          ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION RE: DKT. NO. 153

          MARIA-ELENA JAMES United States Magistrate Judge.

         INTRODUCTION

         Plaintiff Gary Castro seeks leave to file a motion for reconsideration of the Court's April 19, 2016 Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (“MSJ Order”). Mot., Dkt. No. 153; see MSJ Order, Dkt. No. 111. In the alternative, Plaintiff requests leave to amend his Second Amended Complaint (“SAC”). See Mot. The Court DENIES the Motion.

         A. Leave to File Motion for Reconsideration

         Civil Local Rule 7-9 allows a party to seek leave to file a motion for reconsideration of any interlocutory order. As is relevant here, “[t]he moving party must specifically show reasonable diligence in bringing the motion, and . . . [a] manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.” Civ. L.R. 7-9(b)(3).

         It has been nearly two years since the Court issued its MSJ Order. Plaintiff argues he has acted diligently in seeking reconsideration (Mot. at 2); the Court cannot agree.

         First, Plaintiff was represented by counsel when the Court issued its ruling. He continued to be represented by counsel until November 22, 2016, when the Court permitted counsel to withdraw. Dkt. No. 125. Plaintiff's former counsel did not seek reconsideration during the approximately seven months between the Court's MSJ Order and the date of his withdrawal. Plaintiff argues his “failure to bring this motion with diligence is attributable to his former counsel, and the failure to bring this motion was outside the control of the Plaintiff.” Mot. at 2. However, “[b]ecause the client is presumed to have voluntarily chosen the lawyer as his representative and agent, he ordinarily cannot later avoid accountability for negligent acts or omissions of his counsel.” Community Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Apr. 24, 2002) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)); see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 397 (1993) (Parties are “held accountable for the acts and omissions of their chosen counsel.”); Casey v. Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (“As a general rule, parties are bound by the actions of their lawyers[.]”). Plaintiff is therefore bound to his former counsel's decision not to bring (or failure to bring) a timely motion for reconsideration.[1]

         Second, although the Court previously rejected Defendants' argument that this case was in “suspended animation” (see Dkt. No. 149), Plaintiff now attempts to argue the same (Mot. at 2). Plaintiff did not request, and the Court did not order, a stay in this case upon the withdrawal of Plaintiff's former counsel. See Docket. As such, while the Court allowed Plaintiff time to search for new counsel, nothing prevented Plaintiff from prosecuting his action on his own, including seeking reconsideration of the MSJ Order.

         Notwithstanding the untimeliness of this Motion, Plaintiff otherwise fails to show “[a] manifest failure by the Court to consider material fact or dispositive legal arguments which were presented to the Court[.]”[2] Civ. L.R. 7-9(b)(3). Rather, Plaintiff seeks to relitigate facts which the Court has already considered, or Plaintiff misreads the Court's MSJ Order.

         For instance, Plaintiff argues the Court “d[id] not discuss whether or not there was probable cause under California Penal Code sections 368(c) elder abuse, and 69 resisting arrest by use of force and violence, respectively.” Mot. at 8. On the contrary, the Court found “Officer Figueiredo had probable cause to arrest Plaintiff for battery, and given that fact, combined with Mr. Nguyen's advanced age, there was likewise probable cause to charge Plaintiff with a violation of Penal Code section 368(c) for Elder Abuse.” MSJ Order at 30 (citing Cal. Penal Code § 368) (emphasis added).

         Plaintiff also misinterprets the Court's ruling on his malicious prosecution claim. Plaintiff argues that although he “made clear he was brin[g]ing a federal malicious prosecution claim, . . . the Court interpreted the claim under state law.” Mot. at 12. In fact, the Court held that “[r]egardless of whether Plaintiff brings his malicious prosecution claim under state or federal law, he cannot maintain it for trial as he has failed to raise specific facts showing that probable cause was absent for the charges against him.” MSJ Order at 30 (emphasis added).

         In short, the Court cannot find Plaintiff has been diligent in bringing this Motion by waiting two years after the Court issued its MSJ Order. See, e.g., Calloway v. Cal. Dep't of Corr. & Rehab., 2010 WL 1221883, at *2 (N.D. Cal. Mar. 24, 2010) (finding plaintiff had not acted diligently by waiting six months to file motion for leave to file motion for reconsideration). Even if Plaintiff's Motion were timely, he fails to set forth any basis for reconsideration. The Court therefore DENIES the Motion for Leave to File a Motion for Reconsideration.

         B. Leave to Amend

         Plaintiff alternatively requests leave to amend his SAC to assert a Monell and ...


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