United States District Court, N.D. California
ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR
RECONSIDERATION RE: DKT. NO. 153
MARIA-ELENA JAMES United States Magistrate Judge.
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
Leave to File Motion for Reconsideration
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.
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.
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.
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.
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[.]” 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
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).
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).
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.
Leave to Amend
alternatively requests leave to amend his SAC to assert a
Monell and ...