Mikhak v. University of Phoenix Inc.

• Court: District Court, N.D. California
• Decided: March 1, 2022
• Docket: 3:21-cv-06919
• Status: Unknown

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 BAHAR MIKHAK, Case No. 21-cv-06919-CRB

8 Plaintiff, ORDER DENYING MOTION TO SET 9 v. ASIDE JUDGMENT

10 UNIVERSITY OF PHOENIX, et al., 11 Defendants.

12 Pro se Plaintiff Bihar Mikhak filed a document entitled “First Motion to Set Aside 13 Judgment In Honor of Martin Luther King’s Day, PLEASE VOID the Order of Dismissal of 14 Plaintiff’s Entire Civil Rights INITIAL Complaint with Prejudice.” Mot. (dkt. 60). Defendants 15 have filed an opposition, see Opp’n (dkt. 62), and Mikhak has filed a reply, see Reply (dkt. 67). 16 The Court finds this matter suitable for resolution without oral argument, pursuant to Civil Local 17 Rule 7-1(b), and VACATES the motion hearing presently set for March 10, 2022. 18 As an initial matter, the motion, at 25 pages, violates the Court’s Standing Order, which 19 requires that any brief in support of a motion not exceed 15 pages, unless the motion is one for 20 summary judgment. Standing Order of 4/2/19 at 1–2. In fact, the motion attaches a 58 page 21 “declaration” and 41 pages in “exhibits,” both of which contain numerous legal arguments. See 22 generally Mikhak Decl. (dkt. 60-1), Exs. (dkt. 60-2). Neither the Court nor opposing counsel can 23 reasonably review over 120 pages of argument. The motion is therefore DENIED on that basis.1 24 The motion is also denied on the merits.2 Mikhak brings the motion under Rules 60(b)(3), 25 1 Mikhak’s assertion that she is “entitled to the additional space needed,” see Reply at 1, is 26 incorrect. As the Court’s Standing Order states, “[a]ny party wishing to exceed this limit must request leave of the Court and must show good cause.” Standing Order of 4/2/19 at 2. Mikhak 27 has done neither. 1 60(d)(3), 60(b)(4), and 60(b)(6) of the Federal Rules of Civil Procedure, and additionally argues 2 that both this Court and the Ninth Circuit panel that affirmed this Court abused their discretion. 3 See generally Mot. The Court will address each basis for the motion in turn. 4 1. Rule 60(b)(3) 5 Rule 60(b)(3) allows the Court to “relieve a party . . . from a final judgment, order, or 6 proceeding” in the case of “fraud . . . , misrepresentation, or misconduct by an opposing party.” 7 Fed. R. Civ. P. 60(b)(3). A party must bring a motion under Rule 60(b)(3) within a year of the 8 entry of judgment or order being appealed. See Fed. R. Civ. P. 60(c)(1). While Defendants assert 9 that it is unclear which order Mikhak seeks to void, see Opp’n at 7, the Court understands based 10 on the title of the motion that she challenges the order dismissing her case, see Mot. at 1; Order of 11 Conditional Dismissal (dkt. 47) in Case No. 16-901 (explaining on 12/5/17 that the Court 12 compelled arbitration in June 2016, that Plaintiff failed to initiate arbitration, that “[i]f Plaintiff 13 wishes to pursue her case, she must do so in arbitration,” and dismissing case for failure to 14 prosecute unless Plaintiff certified within thirty days that she had initiated arbitration); see also 15 Notice of Appeal (dkt. 52) in Case No. 16-901 (appealing case on 12/21/17, before 30 days had 16 passed). Mikhak did not file her motion under Rule 60(b)(3) within one year of the Court’s 17 12/5/17 order, nor even within one year of the United States Supreme Court’s denial of her 18 petition for a writ of certiorari in that case. See Denial of Writ (dkt. 90) in Case No. 16-901 19 (denying cert. on 3/12/20). The motion is untimely under Rule 60(b)(3).3 20 A party seeking relief under Rule 60(b)(3) must also prove fraud by “clear and convincing 21 evidence.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). Although Mikhak 22 references arguments she made elsewhere “that Dal Cielo and the UOP’s witnesses had won the 23

24 3 Mikhak seems to argue in her reply brief that her motion is timely because she filed it “on 12/19/17, within a year of the offending order of 12/5/17.” Reply at 1 (also pointing to a letter she 25 wrote on 11/24/17 asking for an extension of time, (dkt. 44) in Case No. 16-901). But the document Mikhak filed on 12/19/17 was “Plaintiff’s Opposition to Defendant’s motion to dismiss 26 without prejudice” (dkt. 49) in Case No. 16-901, not the pending motion or any motion under Rule 60. The Court explained as to that filing that “[n]o motion to dismiss is pending in this case,” and 27 reiterated that the case had already been dismissed, although the Court would vacate that dismissal 1 arbitration argument because of fraudulent misrepresentation and misconduct,” see Mot. at 4, the 2 motion does not effectively explain what the fraud was.4 To the extent that she is relying on an 3 April 19, 2018 motion and supporting documents in which she complained of fraud by those same 4 individuals, see Motion for Subpoena (dkt. 75) in Case No. 16-901; My Declaration of ALL the 5 “alternative facts” that were made up about me in the previous testimonies given under oath (dkt. 6 74) in Case No. 16-901; Declaration of My New Analysis (dkt. 73) in Case No. 16-901, they are 7 inadequate. For example, two of Mikhak’s central arguments then were that the Court was led to 8 believe that Mikhak was a faculty member, although she was really a faculty candidate, and that 9 she did not have time to make sense of the arbitration agreement before signing it. Id. But she 10 made a variation of those same arguments when opposing arbitration back in 2016. See Opp’n to 11 Mot. to Compel (dkt. 18) in Case No. 16-901 at 5 (“As a Faculty candidate . . . Plaintiff clicked 12 ‘Accept’ the 2014–2015 Faculty handbook, rightfully assuming that Steps One through Four of 13 the Dispute Resolution Policy and Procedures, which includes a Binding Arbitration, will go into 14 effect after when she became a ‘current’ Faculty member, not for during the mentorship phase 15 when she was still considered a ‘Faculty candidate.’”); Mikhak Decl. (dkt. 18-1) in Case No. 16- 16 901 ¶ 15 (“From my first review of the UOP’s 2014–2015 Faculty Handbook, I felt that it was and 17 is misleading and had inconsistencies”), ¶ 18 (“Although we were required to study and were 18 quizzed on the 2011–2012 Handbook, one week later, the UOP required me to click and accept the 19 2014–2015 Faculty Handbook, which included new information on ‘Arbitration.’”), ¶ 20 (“It is 20 probably because of these ambiguities . . . that I clicked the ‘Accept’ button during the hiring 21 process”). 22 Mikhak disagrees with the arguments that Defendants made in seeking to compel 23 arbitration, and with the Court’s conclusions as to those arguments. But she has not clearly and 24 convincingly identified any fraud. See De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 25 880 (9th Cir. 2000). The Ninth Circuit reached a similar conclusion. See USCA Memorandum 26 4 Mikhak’s argument that she “has already established that the weight of evidence in support of 27 her allegations of fraud are beyond sufficient by listing them all in her NEW Complaint” is 1 (dkt. 81) in Case No. 16-901 at 3 (“We reject as unsupported by the record Mikhak’s contentions 2 that defendant and its counsel committed perjury, that defendant’s counsel and the district court 3 engaged in misconduct, or that Mikhak was denied an opportunity to file reply briefs in response 4 to various filings by defendant.”). 5 Accordingly, the motion fails under Rule 60(b)(3). 6 2. Rule 60(d)(3) 7 Rule 60(d)(3) provides that Rule 60 does not “limit a court’s power to . . . set aside a 8 judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). “Fraud on the court requires a ‘grave 9 miscarriage of justice.’” Appling v. State Farm Mut. Auto Ins. Com., 340 F.3d 769, 780 (9th Cir. 10 2003) (quoting United States v. Beggerly, 524 U.S. 38, 47 (1998)). Parties seeking “relief under 11 Rule 60(d)(3) . . . must show fraud on the court, rather than the lower showing required for relief 12 under Rule 60(b)(3).” United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1167 (9th Cir. 13 2017), cert. denied, 138 S. Ct. 2675 (2018). “[F]raud on the court must involve an unconscionable 14 plan or scheme which is designed to improperly influence the court in its decision.” Id. (internal 15 quotation marks omitted). 16 Mikhak’s argument in support of Rule 60(d)(3) is the same as her argument in support of 17 Rule 60(b)(3). See Mot. at 8 (“Plaintiff has demonstrated by clear and convincing evidence that 18 there was fraud on the court (e.g., the fabrication of evidence by the UOP’s witnesses in which Dal 19 Cielo is implicated).”). As she has failed to satisfy “the lower showing required for relief under 20 Rule 60(b)(3),” see Sierra Pac. Indus., Inc., 862 F.3d at 1167, she has also failed to make the more 21 significant showing required under Rule 60(d)(3). In addition, as Defendants note, “’relief for 22 fraud on the court is available only where the fraud was not known at the time of settlement or 23 entry of judgment.’” Opp’n at 11 (quoting Sierra Pac. Indus., Inc., 862 F.3d at 1168). Here, 24 Mikhak’s allegations of fraud appear to involve only the statements made by UOP’s witnesses in 25 2016. See Motion for Subpoena in Case No. 16-901. If so, Mikhak was aware of those alleged 26 misrepresentations before her case was dismissed in December 2017. See Order of Conditional 27 Dismissal in Case No. 16-901; see also Mikhak Decl. Ex R1 (listing 11/24/17 as the date when 1 fraudulent & material misrepresentation.)”); see also Plaintiff’s Opposition to Defendant’s Motion 2 (dkt. 49) in Case No. 16-901 at 2 (“Two weeks after I attended the court hearing on 10/27/17, I 3 finally caught on with the readings and discovered these falsified statements”). 4 Accordingly, the motion fails under Rule 60(d)(3). 5 3. Rule 60(b)(4) 6 Rule 60(b)(4) allows the Court to “relieve a party . . . from a final judgment, order, or 7 proceeding” when “the judgment is void.” Fed. R. Civ. P. 60(b)(4). A judgment is void under 8 Rule 60(b)(4) “only if the court that considered it lacked jurisdiction, either as to the subject 9 matter of the dispute or over the parties to be bound, or acted in a manner inconsistent with due 10 process of law.” United States v. Berke, 170 F.3d 882, 883 (9th Cir. 1999). “‘A judgment is not 11 void merely because it is erroneous.’” Id. (quoting In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 12 (9th Cir. 1985)). Mikhak argues that the judgment was void in this case because, while this Court 13 “granted her proper notice, both for when she was represented by counsel, and for when she had 14 become a pro se litigant,” the Court “denied her a notice of hearing opportunity to Show Cause for 15 her hesitation or delay initiating arbitration with Dal Cielo.” Mot. at 10. Apparently, she contends 16 that the Court should not have dismissed her case with prejudice without a hearing. Id. at 10–11. 17 Mikhak points to no authority requiring a hearing before the dismissal of her case. 18 Moreover, the Court gave Mikhak multiple opportunities to avoid dismissal. The Court granted 19 the motion to compel arbitration on June 21, 2016. See Order Granting Motion to Compel (dkt. 20 27) in Case No. 16-901. Mikhak could have initiated arbitration any time thereafter. Instead, 21 Mikhak moved for reconsideration of that order in August 2017, see Mot. for Reconsideration 22 (dkt. 32) in Case No. 16-901, and the Court explained that she had failed “to show reasonable 23 diligence,” Order Denying Reconsideration (dkt. 34) in Case No. 16-901. Mikhak then moved to 24 stay the case, see Mot. to Stay (dkt. 36) in Case No. 16-901, and the Court denied the motion, 25 issuing an oral order to show cause that dismissed the case for failure to prosecute unless Mikhak 26 filed a declaration by November 27, 2017 stating that she had initiated arbitration, see Motion 27 Hearing (dkt. 43) in Case No. 16-901. Instead of initiating arbitration, Mikhak sent a letter to the 1 she terminated her counsel. Letter (dkt. 44) in Case No. 16-901; Motion for Leave to File (dkt. 2 45) in Case No. 16-901. The Court explained:

3 The Court will not reconsider its June 2016 order compelling arbitration. Nor will the Court give Plaintiff a ‘no time pressure’ 4 extension to do something the Court compelled her to do nearly a year and a half ago. Plaintiff asserts that she has ‘been working on this 5 case for 3 years’ and that she does not want to ‘los[e] all [of her] investment in striving for justice.’ See Plaintiff Letter at 1. If Plaintiff 6 wishes to pursue her case, she must do so in arbitration. See Order re Arbitration; see also Fidelity Philadelphia Trust Co. v. Pioche Mines 7 Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978) (‘It is a well established rule that the duty to move a case is on the plaintiff and not on the 8 defendant or the court.’). 9 Order of Conditional Dismissal in Case No. 16-901 at 1–2. The Court dismissed the case for 10 failure to prosecute pursuant to Rule 41(b), but it provided “that if Plaintiff shall certify to this 11 Court, within thirty days of this Order, that she has initiated arbitration, the foregoing Order shall 12 stand vacated and this case shall forthwith be restored to the calendar.” Id. at 2. Mikhak filed an 13 “Opposition to Defendant’s motion to dismiss without prejudice,” which largely reargued the facts 14 of her case, see Plaintiff’s Opposition to Defendant’s Motion, and the Court explained again how 15 the Order of Conditional Dismissal operated, and stated that “the Court will not consider any 16 submissions by the parties in this case, save and except from Plaintiff, filed on or before January 17 4, 2018, stating that she has initiated arbitration,” Order re “Plaintiff’s Opposition to Defendant’s 18 Motion” in Case No. 16-901. Mikhak filed a Notice of Appeal, thus terminating her case in this 19 Court. See Notice of Appeal in Case No. 16-901. 20 Not insignificantly, in that appeal, the Ninth Circuit upheld this Court’s dismissal of 21 Mikhak’s case for failure to prosecute. See USCA Memorandum in Case No. 16-901. The court 22 held that this Court “did not abuse its discretion by dismissing Mikhak’s action for failure to 23 prosecute because Mikhak did not comply with the district court’s orders directing Mikhak to 24 initiate arbitration despite being warned that noncompliance could result in dismissal.” Id. at 2. 25 Given the Ninth Circuit’s conclusion that the Court did not abuse its discretion, and given the 26 repeated opportunities this Court gave to Mikhak to initiate arbitration rather than have her case 27 dismissed, Mikhak’s argument that the Court violated her due process rights falls flat. 4. Rule 60(b)(6) 1 Rule 60(b)(6) allows the Court to “relieve a party . . . from a final judgment, order, or 2 proceeding” for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “Rule 60(b)(6) 3 has been used sparingly as an equitable remedy to prevent manifest injustice” and is used “only 4 where extraordinary circumstances prevented a party from taking timely action to prevent or 5 correct an erroneous judgment.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 6 1049 (9th Cir. 1993). “A movant seeking relief under Rule 60(b)(6) must show extraordinary 7 circumstances justifying the reopening of a final judgment.” Henson v. Fidelity Nat’l Fin., Inc., 8 943 F.3d 434, 443–44 (9th Cir. 2019) (internal quotation marks omitted). Mikhak argues that her 9 counsel’s “gross negligence” justifies Rule 60(b)(6) relief. Mot. at 12. 10 Mikhak is correct that “an attorney’s gross negligence resulting in dismissal with prejudice 11 for failure to prosecute constitutes an ‘extraordinary circumstance’ under Rule 60(b)(6) warranting 12 relief from judgment.” See Lal v. State of California, 610 F.3d 518, 524 (9th Cir. 2010). But she 13 has failed to demonstrate gross negligence here. In Lal, 610 F.3d at 524, the court noted that “an 14 attorney’s actions are typically chargeable to his or her client and do not ordinarily constitute 15 extraordinary circumstances warranting relief from judgment.” What made that case different was 16 that, as in Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002), Lal’s attorneys 17 “‘virtually abandoned [their] client by failing to proceed with [their] client[s’] [case] despite court 18 orders to do so,’” and they “‘deliberately misle[d] [their clients] and depriv[ed] [them] of the 19 opportunity to take action to preserve [their] rights,’” not even informing their clients when their 20 cases had been dismissed but pretending that the case “proceeding properly.” Id. at 525–26 21 (quoting Tani, 282 F.3d at 1167–71). Mikhak has made no showing that her attorneys abandoned 22 her, failed to participate in her case, or lied to her about what occurred in her case. She complains 23 that they “refused to correct their mistakes/omissions in the record,” “would not return her calls, 24 texts, and emails,” said that they were still interested in representing her, failed to provide her with 25 pleadings before filing them, and did not share with her their strategy about an interlocutory 26 appeal. Mot. at 12–13. 27 This Court observed Mikhak’s counsel’s performance. Whatever mistrust developed over 1 time, see Mikhak Decl. at 11–12 (complaining that attorneys’ strategy of waiting to see how lower 2 courts interpreted Morris led to an unreasonable delay and concluding that “[b]ecause of their 3 gross negligence and refusal to amend their mistakes, I parted ways with them.”), Mikhak’s 4 counsel participated in her case, responded to every motion, and filed their own motions. They 5 appeared at the October 2017 hearing at which the Court first conditionally dismissed Mikhak’s 6 claims and set a November 27, 2017 deadline to initiate arbitration. See Motion Hearing. When 7 Mikhak terminated them right before the November 27, 2017 deadline, her counsel responsibly 8 filed a motion for relief of further representation, noting that they no longer had the power to 9 submit a declaration about the initiation of arbitration and saw nothing on the Court’s docket 10 indicating that Mikhak had done so. See Motion for Leave to File at 2. “Counsel might not have 11 performed as [Mikhak] might have preferred, but [they] did not abandon [her].” Harrow v. Street 12 (In re Fruehauf Trailer Corp.), 600 Fed. Appx. 557 (9th Cir. 2015). 13 Unlike in Lal and Tani, Mikhak’s counsel’s actions are not the reason her case was 14 dismissed. The Court gave Mikhak a further extension of time to initiate arbitration before her 15 case was dismissed even after November 27, 2017, and Mikhak still did not initiate arbitration. 16 See Order of Conditional Dismissal in Case No. 16-901 (holding on 12/5/17 that “if Plaintiff shall 17 certify to this Court, within thirty days of this Order, that she has initiated arbitration, the 18 foregoing Order shall stand vacated”); Order re “Plaintiff’s Opposition to Defendant’s Motion” in 19 Case No. 16-901 (reiterating January 4, 2018 deadline to initiate arbitration). Based on her 20 continued filings as to the merits of the case, see, e.g., Plaintiff’s Opposition to Defendant’s 21 Motion in Case No. 16-901; Motion for Subpoena in Case No. 16-901, and the filing of a new 22 lawsuit re-alleging many of the same issues, see Compl. (dkt. 1), it seems that she declined to 23 initiate arbitration because she continued to believe that the merits of her case should be heard in a 24 federal district court, and not in arbitration, where she believed that opposing counsel would 25 “defraud the arbitrator.” See Reply at 5. That is not her lawyers’ fault.5 26 5 Mikhak asserts at one point in her motion that she “even sent an email to her counsels to initiate 27 arbitration (ER2, page 106) which suggests her intention was to comply with the court’s order. 1 Accordingly, the motion fails under Rule 60(b)(6). 2 5. Abuse of Discretion 3 Finally, Mikhak argues that this Court abused its discretion in dismissing her case with 4 || prejudice, and the Ninth Circuit abused its discretion by affirming this Court. See Mot. at 18-24. 5 || But this Court’s ruling was already the subject of an appeal, and the Ninth Circuit concluded that 6 this Court did not abuse its discretion. See USCA Memorandum in Case No. 16-901 at 1 (“We 7 || review for an abuse of discretion. ... We affirm.”). And this Court has no jurisdiction to review 8 || whether the Ninth Circuit’s decision affirming this Court was itself an abuse of discretion.® 9 || Mikhak’s petition for panel rehearing and petition for rehearing en banc were denied. See USCA 10 || Order (dkt. 85) in Case No. 16-901. Mikhak filed a petition for writ of certiorari in the United 11 States Supreme Court, see Writ (dkt. 89) in Case No. 16-901, and the Supreme Court denied her ae 2 petition for a writ of certiorari, see Denial of Cert. in Case No. 16-901.

13 Accordingly, the motion fails on the abuse of discretion argument.

14 For the foregoing reasons, Mikhak’s motion to set aside the judgment in her earlier case 1s

15 || DENIED. 16 IT IS SO ORDERED. KE —— 17 Dated: March 1, 2022 CHARLES R. BREYER Z 18 United States District Judge 19 20 21 22 23 94 || Even the document she cites in support of this statement—a timeline she has created of the events of her earlier case, which she attached to her new complaint—asserts that on 11/8/17, “[u]nder 25 extreme time pressure, [she] sent an email to ,. . . former counsels to initiate the arbitration agreement” but that on 11/9/17 she “immediately emailed . . . counsels and asked them to file a 26 || motion for more time.” See Compl. (dkt. 1-6) at 127 of 182. 6 Mikhak argues that “[{I]f the district court had the inherent power to enter judgment that 97 || Plaintiff's INITIAL and NEW Complaints are related, then it certainly must mean that it has the Jurisdiction to consider Plaintiff's two arguments.” See Reply at 29. Not so. Determining 2g || whether two cases are related under Civil Local Rule 3-12(a) is an entirely different inquiry than determining if this Court or the Court of Appeals abused its discretion.