Domeneque Perry v. Tiffany & Bosco PA, et al.
Opinion
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Domeneque Perry, No. CV-26-00502-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Tiffany & Bosco PA, et al.,
13 Defendants. 14 15 This Court dismissed this action with prejudice on May 13, 2026. (Doc. 18.) 16 Plaintiff appealed this decision (Doc. 29) and the case remains pending with the United 17 States Court of Appeals for the Ninth Circuit. Plaintiff has filed a variety of motions and 18 the Court rules as follows. 19 A. Motion for Relief from Judgment (Docs. 28, 30) 20 The Court first considers Plaintiff’s Motion for Relief from Judgment under Federal 21 Rule of Civil Procedure (“Rule”) 60(b) (Doc. 28). “[T]he filing of a notice of appeal divests 22 a district court of jurisdiction over those aspects of the case involved in the appeal.” Kenner 23 v. Beneditti, No. 3:08-CV-00489-ECR, 2012 WL 938747, at *1 (D. Nev. Mar. 19, 2012), 24 aff’d sub nom., Kenner v. Smith, 569 F. App’x 520 (9th Cir. 2014). “To seek Rule 60(b) 25 relief during the pendency of an appeal, the proper procedure is to ask the district court 26 whether it wishes to entertain the motion, or to grant it, and then move this court, if 27 appropriate, for remand of the case.” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 28 2004). Plaintiff has done so, filing a Motion for Indicative Ruling pursuant to Rule 62.1 1 (Doc. 30.) The Court exercises its authority under Rule 62.1(a)(2) to deny the Motion. 2 Rule 60(b) provides for reconsideration where, as relevant here, there is mistake, 3 inadvertence, surprise or excusable neglect. See Austin v. Baker, No. CV 4 10-2467-PHX-ROS, 2014 WL 11320633, at *2 (D. Ariz. June 20, 2014). “Rule 60(b) 5 reconsideration is generally appropriate only when the district court (1) is presented with 6 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 7 unjust, or (3) if there is an intervening change in controlling law.” Id. (citation modified). 8 Plaintiff argues that this Court committed “legal error” when it dismissed her Title VII 9 claim “because Defendant could not have known of Plaintiff's EEOC communications 10 prior to termination.” (Doc. 28 at 2.) The Court reviewed Plaintiff’s Motion and finds that 11 there is not a basis upon which to grant Rule 60(b) relief. The Court highlights a few salient 12 points. 13 To start, Plaintiff contends that her First Amended Complaint (“FAC”) “explicitly 14 alleged internal protected complaints” which can give rise to a Title VII claim. (Id.) 15 Plaintiff is mistaken. The FAC only expressly predicated Plaintiff’s Title VII claim on 16 “activity protected under Title VII . . . including initiating contact with the Equal 17 Employment Opportunity Commission concerning conduct Plaintiff reasonably believed 18 implicated statutory protections.” (Doc. 13 at 6.) The FAC did not expressly link 19 Plaintiff’s Title VII claim to any other conduct, much less the discrete internal complaints 20 Plaintiff identifies in her Motion. The Court recognizes that the FAC states that Plaintiff 21 engaged in activity “including” the EEOC communications which suggests there might be 22 other protected activities. However, “[i]t is not the job of the district courts to make sense 23 of the pleading, to supply facts to support the claim, or to imagine the claims that might fit 24 the facts.” Gibson v. City of Portland, 165 F.4th 1265, 1289 (9th Cir. 2026). 25 Plaintiff goes on to contend that this Court erred because she established causation 26 in regards to her Title VII claim. (Doc. 28 at 2.) Plaintiff claims that “[t]he factual 27 chronology in the FAC satisfies this standard.” (Id.) Plaintiff then goes on to recite a 28 “factual chronology” that did not appear in the FAC. For example, Plaintiff points to an 1 August 13, 2025 event in which management confirmed that she did not have performance 2 issues. (Id.) The FAC did not mention this event; neither did the FAC mention the August 3 20 event Plaintiff highlights in her Motion. (See id.) Nonetheless, the FAC did not mention 4 these events in regards to the Title VII claim. The Court notes that Rule 60(b) “may not 5 be used to raise arguments or present evidence for the first time when they could reasonably 6 have been raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 7 877, 890 (9th Cir.2000). Still, these events would not otherwise affect the Court’s previous 8 analysis. 9 Finally, Plaintiff argues that this Court violated Lopez v. Smith, 203 F.3d 1122 (9th 10 Cir. 2000) by dismissing the FAC with prejudice. (Doc. 28 at 2–3.) The Court disagrees. 11 Plaintiff failed to bring cognizable claims on multiple occasions and, in filing the FAC, 12 ignored the deficiencies the Court highlighted when it dismissed the original Complaint. 13 (Doc. 7.) For example, the Court notified Plaintiff that her “OSHA claim” failed because 14 “OSHA does not provide a private right of action.” (Doc. 7 at 2.) Nonetheless, Plaintiff 15 still asserted another OSHA claim in the FAC. (Doc. 13 at 7.) The FAC mostly remained 16 disjointed and failed to present cognizable claims. 17 For these reasons the Court grants Plaintiff’s Motion for Indicative Ruling pursuant 18 to Rule 62.1 (Doc. 30) and denies her Motion for Relief from Judgment (Doc. 28). The 19 Court accordingly denies as moot Plaintiff’s various Motions to Expedite (Docs. 31, 32, 20 33, 34). 21 B. Remaining Motions 22 Plaintiff’s remaining motions can be dealt with in short order. First, the Court 23 denies as moot Plaintiff’s Motion to File and Enter Pro Se Appellate Statement and 24 Argument (Doc. 19) and Motion to Supplement Record (Doc. 21). These Motions are 25 addressed to and seek relief from the Ninth Circuit. Plaintiff seemingly filed these Motions 26 with this Court by mistake. 27 The Court next denies Plaintiff’s Motions to Supplement the Record (Docs. 21, 22, 28 23). Under Federal Rule of Appellate Procedure 10(e)(2), the Court may “correct or 1 || supplement the record when anything material to either party is omitted from or misstated 2|| inthe record by error or accident.” Caraccioli v. Facebook, Inc., No. 5:15-CV-04145-EJD, □□ 2017 WL 6272972, at *1 (N.D. Cal. Feb. 28, 2017) (citation modified). This is “not an appropriate vehicle for expanding the record on appeal with material not considered by the 5 || district court in the first instance.” /d. (citation modified). Plaintiff attempts to do exactly || that. For example, Plaintiff seeks to supplement the record with documents relating a 7\| “[p]roposed legislative framework” on a so-called “Judicial Clarity in Pleading Orders || Act.” (Doc. 21.) These documents are unrelated to the facts of this case and the claims 9|| asserted therein. Plaintiff also seeks to supplement the record with documents related to her EEOC filing. (Doc. 23 at 2-3.) Plaintiff never presented these records to the Court, 11 || and thus, are not appropriate for supplementation. See United States v. Garcia, 997 F.2d 12], 1273, 1278 (9th Cir. 1993) (“The district court may not use Federal Rule of Appellate 13 || Procedure 10(e) to supplement the record with material not introduced or with findings not made.”). 15 The Court next denies Plaintiff's Motions to Transmit the record and other filings to the Ninth Circuit (Doc. 24, 25, 26). No action is necessary on these Motions. The Ninth || Circuit has electronic access to the record of this case as filed in this Court. To the extent 18 || these Motions seek to supplement the record, they are denied for the mentioned reasons.
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