Lenk v. Monolithic Power Systems, Inc.

• Court: District Court, N.D. California
• Decided: January 3, 2023
• Docket: 5:20-cv-08094
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KENNETH LAWRENCE LENK, Case No. 20-cv-08094-BLF

9 Plaintiff, ORDER DENYING PLAINTIFF’S 10 v. MOTION FOR APPOINTMENT OF COUNSEL; AND DENYING 11 MONOLITHIC POWER SYSTEMS, INC., PLAINTIFF’S MOTION TO AMEND OR ALTER JUDGMENT PURSUANT 12 Defendant. TO FEDERAL RULE OF CIVIL PROCEDURE 59(e) 13 [Re: ECF 80, 81] 14

15 16 Before the Court are two post-judgment motions filed by pro se Plaintiff Kenneth Lenk 17 (“Lenk”): (1) Request for Counsel (ECF 81) and (2) Motion to Amend or Alter Judgment 18 Pursuant to FRCP 59(e) (ECF 80). Defendant Monolithic Power Systems, Inc. (“MPS”) has filed 19 opposition (ECF 82) to the Rule 59(e) motion. The Court finds the motions suitable for decision 20 without further briefing and without oral argument. See Civ. L.R. 7-1 (b). 21 Lenk’s motions are DENIED for the reasons discussed below. 22 I. BACKGROUND 23 This is the fourth unsuccessful lawsuit Lenk has filed against his former employer, MPS, 24 since leaving the company in 2013. The Court dismissed the suit on November 10, 2021 on the 25 grounds that it was barred by collateral estoppel, was barred by the Noerr-Pennington doctrine, 26 and failed to state a claim. See Order, ECF 32; Judgment, ECF 33. The Court granted in part 27 MPS’s motion for prevailing party attorneys’ fees and costs, awarding MPS $25,215.30 in fees 1 The Court denied several post-judgment motions filed by Lenk, including a first Rule 59(e) 2 motion directed to the judgment, a second Rule 59(e) motion directed to the attorneys’ fees order, 3 and a motion for relief pursuant to Federal Rule of Civil Procedure 60(b). See Orders, ECF 44, 4 51, 57. Another post-judgment motion, seeking recusal of the undersigned judge, was referred to 5 and denied by Judge Haywood S. Gilliam, Jr. See Order, ECF 69. 6 Lenk’s appeals of the judgment, the attorneys’ fees order, and the denial of his Rule 60(b) 7 motion were dismissed by the Ninth Circuit for failure to prosecute. See Lenk v. Monolithic 8 Power Sys., Inc., No. 21-17035; Lenk v. Monolithic Power Sys., Inc., No. 22-15568; Lenk v. 9 Monolithic Power Sys., Inc., No. 22-15887. 10 On November 8, 2022, this Court granted MPS’s request for entry of an amended 11 judgment incorporating the award of $25,215.30 in attorneys’ fees and costs. See Order, ECF 77; 12 Am’d Jud., ECF 78. Lenk has filed a third Rule 59(e) motion directed to the amended judgment. 13 See Mot., ECF 80. He also has filed a request for appointment of counsel. See Req., ECF 81. 14 MPS has filed an opposition to Lenk’s third Rule 59(e) motion, and has not responded to his 15 request for appointment of counsel. 16 II. PLAINTIFF’S REQUEST FOR COUNSEL (ECF 81) 17 Lenk requests that the Court appoint counsel to represent him in this case. “Generally, a 18 person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 19 2009). “However, a court may under ‘exceptional circumstances’ appoint counsel for indigent 20 civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. In making a determination whether 21 exceptional circumstances exist, the court must consider both the ability of the plaintiff to 22 articulate his or her claims pro se and the plaintiff’s likelihood of success on the merits. Id. 23 Because Lenk litigated this action in forma pauperis, the Court will presume that he 24 qualifies as an indigent civil litigant. However, neither of the other relevant considerations favors 25 appointing counsel. Lenk is able to articulate his claims, and there is no likelihood that he will 26 prevail on the only outstanding motion in this case, his current Rule 59(e) motion challenging 27 entry of the amended judgment. The deficiencies of that motion are discussed below. 1 Hl. PLAINTIFF’S RULE 59(e) MOTION (ECF 80) 2 Under Rule 59(e), a party may file a motion to alter or amend a judgment within 28 days 3 after entry of the judgment. See Fed. R. Civ. P. 59(e). Lenk timely filed his current Rule 59(e) 4 || motion, seeking reconsideration of the amended judgment, within 28 days after entry of the 5 amended judgment. See Am’d Jud., ECF 78; Pl.’s Mot., ECF 80. Lenk asserts that the Court 6 || should reconsider entry of the amended judgment because it failed to consider his opposition. 7 Lenk is correct that the Court failed to consider his timely opposition to MPS’s request for 8 entry of an amended judgment. See Pl.’s Opp., ECF 74. Unfortunately, the docket entry of 9 || Lenk’s filing indicated that it related to Lenk’s motion for recusal of the undersigned, which had 10 || been referred to another district judge. See id. However, consideration of Lenk’s opposition 11 would not have resulted in a different outcome. The Court’s order requiring briefing on MPS’s 12 || request for entry of an amended judgment indicated that the Court’s concern was whether it had 13 “authority to enter an amended judgment approximately a year after entry of the original 14 || judgment.” Order Req. Add’! Briefing, ECF 70. Lenk’s opposition did not address the Court’s 3 15 authority to enter an amended judgment, but instead challenged MPS’s entitlement to attorneys’ a 16 || fees and costs. See Pl.’s Opp. ECF 74. MPS’s entitlement to attorneys’ fees and costs was 2 17 || determined by this Court’s attorneys’ fees order, see ECF 47, and Lenk’s appeal of that order was Z 18 || dismissed for failure to prosecute, see Lenk v. Monolithic Power Sys., Inc., No. 22-15568. That 19 || order thus is final, and Lenk has not cited any authority suggesting that the Court was without 20 || authority to amend the judgment to reflect a final award of attorneys’ fees and costs. 21 Lenk’s Rule 59(e) motion is DENIED. 22 IV. ORDER 23 (1) Lenk’s Request for Counsel is DENIED. 24 (2) Lenk’s Motion to Amend or Alter Judgment Pursuant to FRCP 59(e) is DENIED. 25 (3) This order terminates ECF 80 and ECF 81. 26 27 || Dated: January 3, 2023 fl ] Wy t AMG BETH LABSON FREEMAN 28 United States District Judge