Arnold v. Melwani

Opinion

1 2 3 4 5 6 7 DISTRICT COURT OF GUAM 8 9 RICHARD T. ARNOLD, Civil Case No. 09-00030

10 Plaintiff,

11 vs. OPINION AND ORDER 12 RE: MOTIONS 13 MANU P. MELWANI, ANITA MELWANI, LAWRENCE J. TEKER, and ROBERT P. 14 KUTZ, 15 Defendants. 16 17 This matter comes before the court on motions filed by the Defendants Manu P. 18 Melwani, Anita Melwani, Lawrence J. Teker and Robert P. Kutz (“the Melwani Defendants”) 19 and the Plaintiff Richard T. Arnold (“the Plaintiff”). Pursuant to Local Civil Rule 7.1(e)(3), this 20 matter is appropriate for decision without oral argument.1 After reviewing the record and 21 relevant statutes and authority, the court hereby issues the following Opinion and Order. 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 The factual and procedural history of the Plaintiff’s dispute against the Melwani 24 Defendants have been extensively set forth in rulings from both the Superior Court of Guam and 25 the Supreme Court of Guam. The instant case arises from the Plaintiff’s Complaint against the 26 27 1 Local Civ. R. 7.1(e)(3) states “[i]n cases where the parties have requested oral argument, such oral argument may be taken off calendar by Order of the Court, in the discretion 28 of the Court, and a decision rendered on the basis of the written materials on file.” 1 2009. See Docket No. 1. The Plaintiff filed his First Amended Complaint on March 11, 2010. 2 See Docket No. 16. The case was ultimately dismissed on March 31, 2011. See Docket No. 92. 3 In light of the Plaintiff’s status as a pro se litigant, he was granted leave to amend as to Counts I, 4 II and IV of his First Amended Complaint; however, Count III was dismissed with prejudice 5 based on the Rooker-Feldman doctrine and judicial immunity. See id. Judgment was entered on 6 March 31, 2011. See Docket No. 93. 7 The Melwani Defendants filed their Motion to Amend Judgment on April 14, 2011. 8 See Docket No. 95. The Plaintiff subsequently filed three motions relating to the court’s 9 Opinion and Order: a Motion for Reconsideration Under FRCP Rule 59(e) re: Dismissal of 10 Plaintiff’s Count III with Prejudice and FRCP 60(B)(4) Motion filed on April 27, 2011 (Docket 11 No. 98); an Amended Rule 60(B)4 Motion to Vacate Certain Orders, Judgments, and Opinions 12 of the Superior and Supreme Courts of Guam filed on April 27, 2011 (Docket No. 99); and a 13 Motion to Vacate Judgments of the Superior Court in SP0057-07 and Affirming Opinions of the 14 Supreme Court of Guam Under FRCP Rule 60(b)(4) filed on April 27, 2011 (Docket No. 100). 15 The Plaintiff filed an Opposition to the Melwani Defendants’ Motion to Amend Judgment, and 16 the Melwani Defendants filed a reply. See Docket Nos. 108 and 111. The Melwani Defendants 17 did not file responses to the Plaintiff’s motions. 18 In addition, the Plaintiff filed a Notice of Constitutional Question Under FRCP Rule 5.1 19 on May 5, 2011, challenging the constitutionality of District Court of Guam Local Civil Rule LR 20 7.1. See Docket No. 101. Finally, also on May 5, 2011, the Plaintiff requested that he be 21 allowed to effectuate service by filing documents in the district court and contacting counsel 22 telephonically. Docket No. 102. The court will consider each motion below. 23 II. DISCUSSION 24 A. The Melwani Defendants’ Motion to Amend Judgment 25 The Melwani Defendants request that the court amend its Judgment and dismiss all 26 counts of the First Amended Complaint with prejudice. Essentially, the Melwani Defendants 27 argue that there is newly discovered evidence that defeat the Plaintiff’s claim that there is 28 1 states that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the 2 entry of the judgment.” FED. R. CIV. P. 59 (e). They also cite Federal Civil Procedure Rule 3 60(b), which states: 4 (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and 5 just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: 6 (1) mistake, inadvertence, surprise, or excusable neglect; 7 (2) newly discovered evidence that, with reasonable diligence, could not have been 8 discovered in time to move for a new trial under Rule 59(b); 9 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 10 (4) the judgment is void; 11 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier 12 judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 13 (6) any other reason that justifies relief. 14 FED. R. CIV. P. 60(b). 15 The court’s analysis is the same under either Rule 59(e) or Rule 60(b). Jones v. 16 Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990) (“The same standard applies to motions on 17 the ground of newly discovered evidence whether they are made under Rule 59 or Rule 18 60(b)(2).”) (quoting 11 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE, Civil § 19 2859 (1973)). That is, the party seeking amendment must show that the evidence “(1) existed at 20 the time of the trial, (2) could not have been discovered through due diligence, and (3) was ‘of 21 such magnitude that production of it earlier would have been likely to change the disposition of 22 the case.’” Jones, 921 F.2d at 878 (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 23 833 F.2d 208, 211 (9th Cir. 1987). 24 To support their claim, the Melwani Defendants contend there is “newly discovered 25 evidence,” that is, an Eighth Circuit Court opinion, Arnold v. Wood, 238 F.3d 992 (8th Cir. 26 2000), to warrant amending the judgment. In Wood, the Plaintiff had claimed to be a resident of 27 Guam in order to support the case he had filed in the Eastern District of Missouri, where he had 28 1 Eighth Circuit opinion in Wood, satisfies the test for “newly discovered evidence” as set forth in 2 Jones. 3 As to the first factor, this decision was issued in 2001 and thus, certainly “existed at the 4 time of the trial,” or the entire time this case was pending in this court. Jones, 921 F.2d at 878. 5 This factor clearly weighs against a finding of newly discovered evidence. 6 As to the second factor, it is not entirely clear that the decision could have been 7 discovered through due diligence; thus, this factor is inconclusive. 8 As to the third factor, the court does not believe that the existence of the Eighth Circuit 9 decision was “of such magnitude that production of it earlier would have been likely to change 10 the disposition of the case.” Coastal Transfer Co., 833 F.2d at 211. The Melwani Defendants 11 argue that in Wood, the Plaintiff used self-serving affidavits to support his claim of domicile on 12 Guam – just as he is using self-serving affidavits in the instant case to support his claim of 13 citizenship in Missouri. Docket No. 95. They characterize the Plaintiff’s revolving claims of 14 citizenship as “deceitful conduct, if not an outright attempt at defrauding the Court.” Docket No. 15 95. In Wood, the Eighth Circuit recognized that the Plaintiff was living in Guam in October 16 1998 when he initiated the Missouri lawsuit, but did not rule on the issue of Plaintiff’s 17 citizenship. Wood, 238 F.3d at 994. Indeed, in his appellate brief to the Eighth Circuit, the 18 Plaintiff alleged that “[d]uring the entire period of time that he maintained a residence in the U.S. 19 Territory of Guam, Mr. Arnold intended to return to Missouri . . . .” See Arnold v. Wood, 20 Appellate Case No. 00-1563, Docket No. 17, at p. 5 (May 9, 2000) (Appellant’s Brief). This 21 intent is reiterated in his February 18, 2011 Affidavit to Prove Diversity of Citizenship. 22 See Docket No. 88. 23 The Ninth Circuit has stated that “a person’s old domicile is not lost until a new one is 24 acquired. A change in domicile requires the confluence of (a) physical presence at the new 25 location with (b) an intention to remain there indefinitely.” Lew v. Moss, 797 F.2d 747, 750 (9th 26 Cir. 1986) (citations omitted). Here, the Plaintiff, although physically present on Guam, has not 27 stated his intention to remain here indefinitely. Rather, he maintains that he wishes to return to 28 1 living in Guam when he initiated his case in the Eastern District of Missouri, would not have 2 been likely to change the disposition of this court’s dismissal of the Plaintiff’s case. See Docket 3 No. 92. 4 Accordingly, both the second and third factors counsel against finding that Wood 5 constitutes newly discovered evidence to support the Melwani Defendants’ Motion to Amend 6 Judgment. For the reasons stated above, this motion is hereby DENIED. 7 B. The Plaintiff’s Motion for Reconsideration pursuant to FRCP 59(e) 8 The Plaintiff seeks reconsideration of this court’s decision to dismiss Count III with 9 prejudice and this court’s mooting the Plaintiff’s Rule 60(b)(4) Motion to Vacate Certain Orders, 10 Judgments, and Opinions of the Superior and Supreme courts of Guam. See Docket No. 98. In 11 its March 31, 2011 Opinion and Order, the court construed the Plaintiff’s allegations in Count III 12 as “a forbidden de facto appeal from the decisions of Guam’s Superior and Supreme Courts.”2 13 Docket No. 92. The court dismissed Count III with prejudice, finding that it lacked jurisdiction 14 based on the Rooker/Feldman doctrine. See id. The dismissal was also grounded in principles of 15 judicial immunity. See id. 16 In seeking reconsideration of the dismissal of Count III with prejudice, the Plaintiff cites 17 Federal Civil Procedure Rule 59(e), which states that “[a] motion to alter or amend a judgment 18 must be filed no later than 28 days after the entry of the judgment.” FED. R. CIV. P. 59(e). The 19 Ninth Circuit has articulated three grounds justifying reconsideration : (1) an intervening change 20 in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or 21 prevent manifest injustice. Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir. 22 1998). 23 The Plaintiff fails to demonstrate an intervening change in controlling law, and he 24 presents no new evidence for the court to consider. Moreover, his citation to Exxon Mobil v. 25 26 27 2 In Count III, the Plaintiff alleged, inter alia, that: “Both courts have failed to properly rule concerning the contract signed by the plaintiff and [Defendant] Manu Melwani and have 28 abused their discretionary powers to delay and deprive plaintiff of his money.” Docket No. 16. 1 there is a need to correct clear error or prevent manifest injustice; he simply reiterates his 2 challenges to the rulings of the Superior Courts and Supreme Courts. Moreover, his motion 3 neither discloses any new facts that the court was unaware of, nor does it reveal any manifest 4 error of law in the court’s ruling. In re Agric. Research & Tech. Group, 916 F.2d 528, 542 (9th 5 Cir. 1990) (“Motions for reconsideration may properly be denied where the motion fails to state 6 new law or facts”). 7 Accordingly, the court DENIES the Plaintiff’s Motion for Reconsideration Under FRCP 8 Rule 59(e). 9 10 C. The Plaintiff’s Motions to as to Orders, Judgments, and Opinions of the Superior and Supreme Courts of Guam 11 In two separate motions, the Plaintiff asks this court to vacate judgments of the Superior 12 and Supreme Courts of Guam arising from Superior Court of Guam Civil Case No. CV887-96 13 (Docket No. 99) and Superior Court of Guam Special Proceedings Case No. SP0057-07 (Docket 14 No. 100). The Plaintiff essentially raises the same arguments that were previously rejected by 15 this court in its March 31, 2011 Opinion and Order. This court held, inter alia, that the 16 Plaintiff’s claims against the Superior and Supreme Courts were barred by the Rooker-Feldman 17 doctrine and principles of judicial immunity. Docket No. 92. 18 These motions reveal that the Plaintiff fails to comprehend that the District Court of 19 Guam cannot grant the relief he seeks – to vacate the rulings of the Superior or Supreme Courts 20 of Guam. “As courts of original jurisdiction . . . federal district courts lack jurisdiction to review 21 22 3 In fact, this court quoted Exxon Mobil as demonstrating the precise situation in the 23 instant case, where the Plaintiff lost in the local courts of Guam, and subsequently sought review in the federal court system: 24 The Rooker- Feldman doctrine, we hold today, is confined to cases of the kind 25 from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the 26 district court proceedings commenced and inviting district court review and 27 rejection of those judgments. 28 Exxon Mobil., 544 U.S. at 284. 1 the final determinations of a state court in judicial proceedings.” Doe & Assocs. Law Offices v. 2 Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001). “This doctrine applies even when the 3 challenge to the state court decision involves federal constitutional issues.” Worldwide Church 4 of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986). 5 Therefore, the court DENIES the Plaintiff’s Amended Rule 60(B)4 Motion to Vacate 6 Certain Orders, Judgments, and Opinions of the Superior and Supreme Courts of Guam and 7 Motion to Vacate Judgments of the Superior Court in SP0057-07 and Affirming Opinions of the 8 Supreme Court of Guam Under FRCP Rule 60(b)(4). See Docket Nos. 99 and 100. 9 D. The Plaintiff’s Notice of Constitutional Question Under FRCP Rule 5.1 10 The Plaintiff filed a Notice of Constitutional Question Under FRCP Rule 5.1 challenging 11 the constitutionality of District Court of Guam Local Civil Rule LR 7.1. See Docket No. 101. He 12 requests this court certify the constitutionality of this rule to the Attorney General of the United 13 States. See id. 14 Federal Civil Rule 5.1 states, in relevant part: 15 (a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: 16 (1) file a notice of constitutional question stating the question and identifying the 17 paper that raises it, if: 18 (A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity . . . . 19 [and] 20 (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned . . . either by certified or registered mail or by sending 21 it to an electronic address designated by the attorney general for this purpose. 22 FED. R. CIV. P. 5.1(a)(1)(A). 23 The Plaintiff’s motion is without merit. The Plaintiff himself concedes that Local Civil 24 Rule LR 7.1 “is not designated as a statute.” Docket No. 101 , p. 2. Federal Civil Procedure 25 Rule 5.1 only pertains to pleadings “drawing into question the constitutionality of a federal or 26 state statute .” FED. R. CIV. P. 5.1(a). Here, the Plaintiff challenges this court’s local rule of 27 practice, which is not a “federal or state statute.” Accordingly, Rule 5.1 is inapplicable here. 28 See Gillon v. Fed. Bureau of Prisons, No. 10–1425, 2011 WL 2023411, *3 (10th Cir. May 25, Arnold v. Melwani, CV09-00030 Opinion and Order re: Motions to Dismiss 1 || 2011) (finding a prisoner’s reliance on Rule 5.1 to challenge Bureau of Prisons policies “entirely 2 || without merit”); compare Oklahoma ex rel. Edmondson vy. Pope, 516 F.3d 1214 (10th Cir. 2008) 3 || (remanding a case to the district court to certify a party’s challenge to the constitutionality of a 4 || portion of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227). 5 Accordingly, the court DENIES the Plaintiffs request pursuant to Federal Civil Rule 5.1 6 || to certify the constitutionality of Local Civil Rule 5.1. 7 E. The Plaintiff’s Motion for Order and Stipulation of Service by Electronic Means Finally, the Plaintiff “moves the court for a stipulation and order to provide service to opposing counsel by filing with the district court together with a phone call notifying counsel of 10 the filing.” Docket No. 102. He represents that he and opposing counsel “had verbally 11 stipulated and agreed to this arrangement of service last year.” Jd. He also states that he cannot 12 afford the cost of copies and postage for mailing. See id. 13 Service of process for papers other than the complaint is governed by Federal Civil 14 Procedure Rule 5; Local Civil Rule 5.1; and the amended Administrative Procedures For the 15 Electronic Filing, Signing, Verifying, and Serving of Civil and Criminal Documents adopted by 16 this court. The procedure for service proposed by the Plaintiff does not comport with the federal 17 or local rules of practice and procedure. Notwithstanding the Plaintiff's representation that the 18 parties had reached a verbal agreement as to an alternative method of service of process, the 19 court cannot grant his motion absent a written stipulation that has been signed by the parties 20 and/or counsel. 21 Accordingly, the court DENIES the Plaintiffs motion for Order and Stipulation of Service 22 by Electronic Means. 23 IT is SO ORDERED. 24 25 & sr /s/ Frances M. Tydingco-Gatewood 26 Chief Judge ’ & Dated: Aug 31, 2011 28 -Q-