Luckert v. Gutierrez

• Court: District Court, N.D. California
• Decided: June 14, 2024
• Docket: 4:19-cv-08204
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MICHAEL L LUCKERT, Case No. 19-cv-08204-PJH

7 Plaintiff, ORDER RE PENDING MOTIONS v. 8 Re: Dkt. Nos. 144, 154, 155, 159, 161 9 GUTIERREZ, Defendant. 10

11 12 Plaintiff, a detainee, proceeds with a pro se civil rights complaint under 42 U.S.C. 13 § 1983. Before the court are plaintiff’s motions to recall Brian Mendoza as a defendant in 14 this case for the forthcoming trial. Defendant filed a response and plaintiff filed a reply. 15 Background 16 On September 3, 2020, the court ordered service of plaintiff’s amended complaint 17 (Dkt. No. 20) on several claims of excessive force against multiple defendants regarding 18 plaintiff’s arrest at the public library and placement in a cell at the county jail. Dkt. No. 21. 19 Many claims and defendants were later dismissed but what is relevant to the instant 20 motions were the allegations that defendant Gutierrez injured plaintiff’s wrist at the library 21 and Gutierrez and defendant Mendoza injured plaintiff while placing him in a cell at the 22 county jail. Dkt. No. 20 at 3-6. Plaintiff stated that Mendoza bent his wrist back and 23 pulled the wrist out of the joint and injured plaintiff’s hand when he removed plaintiff’s 24 soiled pants. Id. at 6-7. Included in plaintiff’s amended complaint was a black and white 25 copy of his arrest card with various names, signatures and badge numbers. Id. at 20. 26 Defendants filed a summary judgment motion which included various 27 declarations and exhibits. Plaintiff filed several oppositions (Dkt. Nos. 77, 81, 85) and 1 regarding the actions of the individual defendants. The operative amended complaint 2 had presented specific allegations against Mendoza, but in opposition to summary 3 judgment plaintiff stated that this was a mistake because he confused Mendoza and 4 Gutierrez. Dkt. No. 77 at 9-10. Plaintiff asked that the allegations against the defendants 5 be switched. Id. Plaintiff relied on a copy of the arrest card which he attached as an 6 exhibit. Dkt. No. 77 at 28. 7 In light of plaintiff proceeding pro se and at times being incarcerated or homeless, 8 he was permitted to switch the allegations. The summary judgment motion included a 9 declaration submitted by Mendoza and exhibits describing the amount of force that was 10 used, which he argued was minimal. Plaintiff did not even attempt to refute this 11 assertion, and most of his opposition to summary judgment focused on Gutierrez. 12 On December 28, 2022, the court granted summary judgment to Mendoza, who 13 was dismissed with prejudice. Dkt. No. 89 at 7-11. Summary judgment was denied to 14 Gutierrez and the case continued with claims of excessive force against Gutierrez for the 15 events at the library and at the county jail. Id. 16 Part of the evidence presented by Mendoza at summary judgment was a color 17 copy of plaintiff’s arrest card with various names, signatures and badge numbers. Dkt. 18 No. 70-11 at 2. In his declaration, Mendoza noted that he wrote on the arrest card 19 “2/26/19 subject resisted arrest and resisted exiting the vehicle; subject was verbally 20 aggressive; subject clothing was discarded due to being soiled w/ feces.” Dkt. No. 70-10 21 ¶ 9. Mendoza also stated that he was not the individual who removed plaintiff’s clothing. 22 Id. ¶ 7. 23 This case was originally scheduled for trial against Gutierrez in May 2024, but was 24 continued to July 29, 2024, because of plaintiff’s incarceration and subsequent sentence 25 on a federal case. In April 2024, plaintiff filed several motions, including the instant 26 motions, seeking to recall Mendoza and substitute him for Gutierrez and dismiss 27 Gutierrez and call him as a witness. Dkt. Nos. 147, 150, 154, 155. Plaintiff once again 1 reviewing a color copy of the arrest card (Dkt. No. 155 at 9), he believes that it was 2 Mendoza who used excessive force at the county jail and signed a specific part of the 3 arrest card with his initials and badge number. Dkt. No. 155 at 1-2. To further confuse 4 the issue, plaintiff also stated in a more recent filing that Gutierrez should in fact not be 5 dismissed but kept as a defendant for injuring plaintiff’s wrist at the library while Mendoza 6 was responsible for the excessive force at the jail. Dkt. No. 160 at 2-4. The court 7 construed plaintiff’s motions as a motion for relief from a judgment or order under Rule 60 8 and a motion to amend under Rule 15 and ordered defendant to file a response. 9 Analysis 10 Rule (60) 11 Rule 60(b) lists six grounds for relief from a judgment. Such a motion must be 12 made within a “reasonable time,” and as to grounds for relief (1) - (3), no later than one 13 year after the judgment was entered. See Fed. R. Civ. P. 60(b). Rule 60(b) provides for 14 reconsideration where one or more of the following is shown: (1) mistake, inadvertence, 15 surprise or excusable neglect; (2) newly discovered evidence which by due diligence 16 could not have been discovered in time to move for a new trial; (3) fraud by the adverse 17 party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason 18 justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 19 (9th Cir.1993). Rule 60(b) provides a mechanism for parties to seek relief from a 20 judgment when “it is no longer equitable that the judgment should have prospective 21 application,” or when there is any other reason justifying relief from judgment. Jeff D. v. 22 Kempthorne, 365 F.3d 844, 851 (9th Cir. 2004) (quoting Fed. R. Civ. P. 60(b)). 23 Mendoza was dismissed on December 8, 2022, and plaintiff’s first motion for this 24 issue was filed on March 31, 2024. Dkt. Nos. 89, 147. Plaintiff’s motion is untimely to the 25 extent he argues mistake, new evidence or fraud by defendants. Defendant argues that 26 Mendoza is not the correct defendant based on the initials and badge number on the 27 arrest card, but even if it was Mendoza, plaintiff was not diligent in presenting this 1 August 2020, when he filed the amended complaint. Plaintiff engaged in discovery for 2 other issues but did not use the discovery process to identify the individual who filled in 3 the specific part of the arrest card at issue. Defendant presented these arguments in 4 response to this motion, but plaintiff did not address them in his reply. A review of all the 5 filings demonstrates that the arrest card is not new evidence and to the extent plaintiff 6 seeks to identify who signed part of the arrest card, he has not been diligent in attempting 7 to discover this evidence. Plaintiff has not shown that he is entitled to relief under 8 60(b)(1) or 60(b)(2). 9 Nor has plaintiff demonstrated any fraud by defendant. Defendant did not keep 10 this evidence from plaintiff who has had the arrest card since the start of this case. 11 Furthermore, the black and white and color copies of the arrest card are equally legible. 12 In his reply to this motion, plaintiff relies on Mendoza’s declaration at summary judgment 13 to support his request to change defendants. Plaintiff was in possession of this 14 declaration at summary judgment and at the time believed it was defendant Gutierrez 15 who was responsible. This demonstrates that Mendoza was consistently forthcoming 16 about his involvement and there is no basis to find any fraud. 17 Nor do the other categories set forth in Rule 60(b) apply. For all these reasons, 18 the 60(b) motion is untimely and even if it was timely, it would be insufficient to warrant 19 relief.1 20 Defendant also construed plaintiff’s motions as seeking reconsideration under the 21 court’s local rules. In the Northern District of California, Local Rule 7-9 allows for the 22 filing of motions for reconsideration only with respect to interlocutory orders made in a 23 case prior to the entry of final judgment. See Civil L.R. 7-9(a). No pre-judgment motion 24 for reconsideration under Local Rule 7-9 may be brought without leave of court. Id. The 25 moving party must specifically show: (1) that at the time of the motion for leave, a 26 1 Plaintiff would have benefited from counsel and the court referred this case to the 27 Federal Pro Bono Project to attempt to locate volunteer counsel. The Pro Bono Project 1 material difference in fact or law exists from that which was presented to the court before 2 entry of the interlocutory order for which the reconsideration is sought, and that in the 3 exercise of reasonable diligence the party applying for reconsideration did not know such 4 fact or law at the time of the interlocutory order; or (2) the emergence of new material 5 facts or a change of law occurring after the time of such order; or (3) a manifest failure by 6 the court to consider material facts which were presented to the court before such 7 interlocutory order. See Civil L.R. 7-9(b). 8 Plaintiff is not entitled relief under the local rule for the same reasons that he was 9 not entitled to relief under the Federal Rules of Civil Procedure. He cannot show a 10 material difference in fact or law, the emergence of new evidence or law or the failure of 11 the court to consider the facts. Plaintiff was in possession of the arrest card since the 12 commencement of the case and had the ability to use discovery to find more information 13 but failed to do so. Plaintiff is not granted leave to file a motion for reconsideration and 14 any such motion would be unsuccessful in any event. 15 Rule 15 16 Rule 15(a) states that “[t]he court should freely grant leave [to amend] when justice 17 so requires.” Fed. R. Civ. P. 15(a). The policy favoring amendments “is to be applied 18 with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 19 (9th Cir. 1990). The court considers four factors when considering a motion for leave to 20 amend: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; and (4) futility 21 of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Prejudice to the opposing 22 party “carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 23 1048, 1052 (9th Cir. 2003). The party opposing amendment bears the burden of showing 24 prejudice, unfair delay, bad faith, or futility. Id. 25 Here, plaintiff filed an amended complaint which was served by the court. During 26 summary judgment the court allowed plaintiff to amend his pleadings and switch the 27 allegations between Mendoza and Gutierrez. Plaintiff now seeks to amend again on the 1 dismissed with prejudice. Above, the court denied plaintiff’s 60(b) motion and motion for 2 reconsideration to recall Mendoza. Defendant presented many arguments why the 3 motion to amend should be denied that plaintiff failed to address in his reply. 4 Courts in this district have denied motions to amend to recall defendants 5 dismissed with prejudice. “Ordinarily, to revive a claim previously dismissed with 6 prejudice, a litigant must move for reconsideration of the order of dismissal, rather than 7 requesting leave to amend for the purpose of reasserting the dismissed claim.” Baba v. 8 Hewlett Packard Co., No. C 09-5946 RS, 2012 WL 12921298, at *2 (N.D. Cal. May 22, 9 2012); see Ruiz v. Gap, Inc., No. 07-5739 SC, 2009 WL 250481, at *3 (N.D. Cal. Feb. 3, 10 2009) (“Ruiz should have sought leave of the Court to file a motion for reconsideration of 11 the dismissal. See Civ. L.R. 7-9(a). Ruiz’s motion for leave to amend the Complaint to 12 add a claim that was previously dismissed with prejudice is procedurally improper.”). To 13 the extent plaintiff’s filings could be construed as a motion for reconsideration, it was 14 denied. Therefore, pursuant to the cases above, plaintiff cannot amend to add Mendoza 15 who was dismissed with prejudice. 16 Even looking to the merits of the motion to amend, it must be denied. Plaintiff has 17 already amended once and was later allowed to switch the allegations against the 18 defendants. A district court’s discretion to deny leave to amend is particularly broad 19 where the plaintiff has previously filed an amended complaint. Wagh v. Metris Direct, 20 Inc., 363 F.3d 821, 830 (9th Cir. 2003). A late amendment to add a new theory, when the 21 facts and the theory have been known to the party since inception of the action, are “‘not 22 reviewed favorably.’” San Francisco Herring Ass’n v. United States Dep’t of the Interior, 23 946 F.3d 564, 573 (9th Cir. 2019) (citation omitted) (upholding denial of leave to amend 24 to add a count under the Declaratory Judgment Act, where prior complaints already 25 requested declaratory relief, albeit not under the Declaratory Judgment Act). 26 Plaintiff has also unduly delayed his request to amend. His request was filed 27 eighteen months after summary judgment was adjudicated and relates to evidence that 1 of this evidence but has repeatedly changed his interpretation of the evidence. Undue 2 delay exists when “a party has filed a motion for leave to amend long after it should have 3 become aware of the information that underlies that motion.” IXYS Corp. v. Advanced 4 Power Tech., Inc., No. C 02-03942 MHP, 2004 WL 135861, at *4 (N.D. Cal. Jan. 22, 5 2004). When the moving party knew or should have known the facts and theories raised 6 by amendment, but still delayed, this factor weighs against the moving party. Jackson v. 7 Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990) (“Relevant to evaluating the delay 8 issue is whether the moving party knew or should have known the facts and theories 9 raised by the amendment in the original pleading.”); Haynes v. Hanson, No. 11-cv-05021- 10 JST, 2014 WL 1668904, *2 (N.D. Cal. Apr. 25, 2014) (denying leave to amend when 11 plaintiff named the wrong defendant but offered no explanation for the delay in seeking to 12 amend). 13 Allowing plaintiff to amend, would also prejudice Mendoza who was dismissed with 14 prejudice eighteen months ago and has not been part of the litigation since that time. 15 Discovery is closed and trial is set for July 2024. Courts have found prejudice when 16 discovery is closed or nearly closed, dispositive motions have been ruled on, or trial is 17 imminent. See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798-99 (9th Cir. 1991) (finding 18 defendant would be prejudiced by new claims so close to trial where plaintiff did not move 19 to amend until after discovery was closed, four and a half months before trial, “eight 20 months after the district court granted summary judgment against it, and nearly two years 21 after filing the initial complaint”); Jacobsen v. People, No. 1:14-cv-00108-JLT (PC), 2015 22 WL 5732586, at *4 (E.D. Cal. Sept. 29, 2015) (“Defendants would be prejudiced if the 23 Court were to allow Plaintiff to add new parties more than 18 months after initiation of the 24 lawsuit where the vast majority of discovery with two of the three current Defendants is 25 (or should be) nearly completed.”). 26 Finally, it would be futile to allow plaintiff to amend to recall Mendoza. Mendoza’s 27 initials and badge number appear in other places on the arrest card and do not match the 1 amend is denied. 2 Plaintiff’s last motion is for a “court appointed deposition of a medical doctor trial 3 preparation expert,” in which plaintiff seems to request that the court appoint a medical 4 expert for him and order the expert to review his medical records and to sit for a 5 deposition about those records. Dkt. No. 161. Plaintiff appears to be laboring under the 6 belief that the court can appoint or approve the expenditure of funds for an expert for him 7 as might be appropriate in the case of an indigent criminal defendant. However, in 8 private civil litigation, such as this, there are no such public funds available, nor is there 9 authority for the court to financially support the litigation of one party. Rather, a civil 10 litigant is responsible for funding their own costs of litigation including discovery 11 expenses. Accordingly, the motion is denied. 12 Conclusion 13 1. Plaintiff’s motions (Dkt. Nos. 154, 155) are DENIED. Mendoza will not be 14 recalled and remains dismissed with prejudice. The court will not entertain any more 15 motions regarding recalling Mendoza. 16 2. Defendant previously sought additional discovery and leave to file an additional 17 dispositive motion. Dkt. No. 119. The court allowed discovery regarding plaintiff’s 18 injuries but was not inclined to grant leave for another dispositive motion. Id. Due to 19 plaintiff’s recent admissions withdrawing many of the allegations concerning defendant 20 Gutierrez’s actions at the jail, the court has reconsidered and hereby permits defendant 21 to file an additional summary judgment motion. Defendant may address the events 22 concerning Gutierrez at the library and the jail. 23 3. The court previously permitted additional discovery on the issue of plaintiff’s 24 injuries. It is unclear whether that discovery was completed given plaintiff’s incarceration 25 following his arrest on February 14, 2024, to his anticipated release on June 14, 2024. 26 Accordingly, this discovery may be taken in accordance with the Federal Rules of Civil 27 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) is 1 date of this order to complete discovery. 2 4. Given the further motion practice and defendant and his counsel’s unavailability 3 for the scheduled trial date, defendant’s motion to continue the trial date (Dkt. No. 159) is 4 GRANTED in part. The trial date of July 29, 2024, is VACATED, and the court will set a 5 new pretrial and trial date, if necessary, after any summary judgment motion is filed and 6 adjudicated. The pending motions in limine (Dkt. No. 144) are DENIED without prejudice; 7 the motion for a court appointed expert deposition (Dkt. No. 161) is DENIED with 8 prejudice. 9 5. To expedite the resolution of this case, the court orders: 10 a. No later than ninety days from the date of this order, defendant will 11 file a motion for summary judgment or other dispositive motion. The motion will be 12 supported by adequate factual documentation and will conform in all respects to Federal 13 Rule of Civil Procedure 56 and will include as exhibits all records and incident reports 14 stemming from the events at issue. If defendant is of the opinion that this case cannot be 15 resolved by summary judgment, he will so inform the court prior to the date his summary 16 judgment motion is due. All papers filed with the court will be promptly served on the 17 plaintiff. 18 b. At the time the dispositive motion is served, defendant will also 19 serve, on a separate paper, the appropriate notice or notices required by Rand v. 20 Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 21 F.3d 1108, 1120 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th 22 Cir. 2012) (Rand and Wyatt notices must be given at the time motion for summary 23 judgment or motion to dismiss for nonexhaustion is filed, not earlier); Rand at 960 24 (separate paper requirement). 25 c. Plaintiff’s opposition to the dispositive motion, if any, will be filed with 26 the court and served upon defendant no later than thirty days from the date the motion is 27 served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” 1 which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 2 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 3 d. If defendant wishes to file a reply brief, he will do so no later than 4 fifteen days after the opposition is served upon him. 5 e. The motion will be deemed submitted as of the date the reply brief is 6 due. No hearing will be held on the motion unless the court so orders at a later date. 7 6. All communications by plaintiff with the court must be served on defendant’s 8 counsel by mailing a true copy of the document to defendant’s counsel. 9 7. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 10 informed of any change of address by filing a separate paper with the clerk headed 11 “Notice of Change of Address.” He also must comply with the court’s orders in a timely 12 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 13 pursuant to Federal Rule of Civil Procedure 41(b). 14 IT IS SO ORDERED. 15 Dated: June 14, 2024 16 17 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 18 United States District Judge 19 20 21 22 23 24 25 26 27