Nair v. Toth

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 JAYAKUMAR SUNDARAN NAIR et al., CASE NO. 2:23-cv-00454-TL 12 Plaintiffs, ORDER ON MOTIONS FOR v. RECONSIDERATION 13 ALEX TOTH et al., 14 Defendants. 15

16 17 This matter is before the Court on Plaintiffs’ motion for reconsideration (Dkt. No. 14) of 18 the Court’s order of dismissal (Dkt. No. 12) and amended motion for reconsideration (Dkt. 19 No. 18) of the Court’s order denying appointment of counsel (Dkt. No. 10). Having considered 20 the relevant record, the Court DENIES Plaintiffs’ motions and ORDERS this case shall remain 21 DISMISSED. 22 I. BACKGROUND 23 On March 24, 2023, a 140-page Complaint was filed that was signed by three individuals 24 purporting to be pro se Plaintiffs: Jayakumar Sundara Nair, Rajakumari Susheelkumar, and 1 Sukanya Susheelkumar. Dkt. No. 1 at 140. Of these three individuals, only one—Jayakumar 2 Nair—was described in the section of the Complaint identifying the relevant parties (id. at 9); 3 although Rajakumari Susheelkumar was included in the list of Plaintiffs in the caption, Sukanya 4 Susheelkumar was not (see id. at 1). The Complaint appeared to also raise legal claims on behalf

5 of other individual family members, specifically Jayakrishnan Nair and Omana Thankamma,1 as 6 well as multiple business entities. Id. at 1, 9. 7 On March 28, the Clerk of the Court filed a notice of deficiency informing Plaintiffs that 8 the Complaint had not been signed by Jayakrishnan Nair or Omana Thankamma. Dkt. No. 7 9 (“the Notice”). The Notice further stated that proper signatures needed to be filed by April 11, 10 2023, and explained the procedure for filing the signatures. Id. Plaintiffs never responded to the 11 Notice. 12 Also on March 28, Jayakrishnan Nair, claiming to act as a pro se Plaintiff despite failing 13 to sign the Complaint, filed a motion for the Court to appoint counsel. Id. None of the individual 14 pro se Plaintiffs who signed the Complaint appeared to be seeking appointment of counsel at that

15 time; however, Rajakumari Susheelkumar filed an affidavit in support of Jayakrishnan Nair’s 16 motion to appoint counsel. Dkt. No. 9. 17 On July 14, the Court denied Jayakrishnan Nair’s motion to appoint counsel, noting his 18 failure to cure the deficiency identified in the Notice, his failure to follow appropriate procedures 19 required to establish indigency, and his failure to show that exceptional circumstances warrant 20 appointment of counsel. Dkt. No. 10 at 2–3. The same day, the Court also entered an order to 21 show cause directing Plaintiffs to respond to and correct several deficiencies identified with their 22 23 1 Since two of the individual parties share the surname Nair and two others share the surname Susheelkumar, the 24 Court will use full names of the parties throughout this order to avoid confusion. 1 Complaint. Dkt. No. 11. Relevant to the present motions, the Court specifically ordered 2 Plaintiffs: 3 (1) to review the Federal Rules of Civil Procedure, this district’s Local Civil Rules, 4 and this Court’s Chambers Procedures, noting that failure to comply with any of

5 these rules may result in the imposition of sanctions, up to dismissal of this 6 action; 7 (2) to file an amended complaint by no later than Monday, August 14, 2023, 8 clarifying the individual plaintiffs in this action, reminding them that all 9 individual pro se plaintiffs must separately sign the amended complaint; 10 (3) to note the appearance of counsel on or before Monday, August 14, 2023, to 11 represent the interests of any incapacitated family members on behalf of whom 12 the Plaintiffs intend to raise claims, warning that failure to secure counsel may 13 result in the dismissal of any claims raised on behalf of incapacitated family 14 members; and

15 (4) to note the appearance of counsel and file corporate disclosure statements by no 16 later than Monday, August 14, 2023, for each business entity named as a plaintiff, 17 or otherwise show cause as to why those unrepresented entities should not be 18 dismissed from this action, warning that failure to respond by the deadline would 19 result in the dismissal of all non-compliant business entity Plaintiffs and their 20 related claims. 21 Id. at 2–5. 22 Plaintiffs failed to respond as directed by the August 14 deadline. Consequently, on 23 August 30, the Court entered an order dismissing the Complaint without prejudice pursuant to

24 Fed. R. Civ. P. 41(b). See also Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1130 (9th 1 Cir. 2008) (affirming Rule 41(b) dismissal where plaintiff failed to sufficiently amend complaint 2 after court provided “specific instructions on how to correct the complaint”); Yourish v. Cal. 3 Amplifier, 191 F.3d 983, 986–87 (9th Cir. 1999) (affirming Rule 41(b) dismissal where plaintiff 4 failed to file amended complaint in time allotted by district court); Link v. Wabash R.R. Co., 370

5 U.S. 626, 630–31 (1962) (recognizing the authority of a court to dismiss sua sponte under Rule 6 41(b)). 7 Plaintiffs now move for the Court to reconsider its denial of the motion to appoint 8 counsel and its order of dismissal. 9 II. LEGAL STANDARDS 10 “Motions for reconsideration are disfavored.” LCR 7(h)(1). Such motions must be filed 11 “within fourteen days after the order to which it relates is filed.” Id. at 7(h)(2). Untimely motions 12 may be summarily denied. Id. (“Failure to comply with [] subsection [(h)(2)] may be grounds for 13 denial of the motion.”). Motions for reconsideration must also be denied absent a showing of 14 “manifest error in the prior ruling or . . . new facts or legal authority which could not have been

15 brought to [the Court’s] attention earlier with reasonable diligence.” Id. at 7(h)(1). “A motion for 16 reconsideration ‘may not be used to raise arguments or present evidence for the first time when 17 they could reasonably have been raised earlier in the litigation.’” Marlyn Nutraceuticals, Inc. v. 18 Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting Kona Enters., Inc. v. 19 Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). These disfavored motions should be granted 20 only in “highly unusual circumstances.” Id. (quoting 389 Orange St. Partners v. Arnold, 179 21 F.3d 656, 665 (9th Cir. 1999)). “Whether or not to grant reconsideration is committed to the 22 sound discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the Yakima 23 Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).

24 1 An artificial entity may not represent itself in court pro se and may only appear in federal 2 court through licensed counsel. See Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201–02 3 (1993); see also LCR 83.2(b)(4) (“A business entity, except a sole proprietorship, must be 4 represented by counsel . . . .”). Cf. United States v. High Country Broad. Co., Inc., 3 F.3d 1244,

5 1245 (9th Cir. 1993) (per curiam) (affirming entry of default judgment against defendant entity 6 when it failed to retain counsel despite the court’s order to do so). Additionally, “a non- 7 lawyer . . . ‘has no authority to appear as an attorney for others than himself.’” Johns v. Cnty. of 8 San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (quoting C.E. Pope Equity Tr. v. United States, 9 818 F.2d 696, 697 (9th Cir. 1987)). 10 A pro se party’s pleadings must be “liberally construed” and held “to less stringent 11 standards than formal pleadings drafted by lawyers.” E.g., Florer v. Congregation Pidyon 12 Shevuyim, N.A., 639 F.3d 916, 923 & n.4 (9th Cir. 2011) (quoting Erickson v. Pardus, 551 U.S. 13 89, 94 (2007) (per curiam)). That said, “courts should not have to serve as advocates for pro se 14 litigants.” Khalid v. Microsoft Corp., 409 F. Supp. 3d 1023, 1031 (W.D. Wash. 2019) (quoting

15 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). “[I]t is axiomatic that pro se litigants, 16 whatever their ability level, are subject to the same procedural requirements as other litigants.” 17 Muñoz v. United States, 28 F.4th 973, 978 (9th Cir. 2022). 18 III. DISCUSSION 19 A. Plaintiffs’ Deficient Motion for Reconsideration of Appointment of Counsel

20 Plaintiffs’ deficient amended motion for reconsideration of the Court’s order denying 21 appointment of counsel warrants summary denial. As an initial matter, the Court’s order on the 22 motion to appoint counsel was filed on July 14, 2023. See Dkt. No. 10. Plaintiffs filed their initial 23 motion for reconsideration on September 28, which was then amended on October 2, 2023. See 24 Dkt. Nos. 17–18. Even if the Court were to accept the earlier date as the operative filing date of 1 the motion, as opposed to the filing date of the amended motion, it would still be two months 2 later than is allowed by the local rules. See LCR 7(h)(2). The untimeliness of the motion is 3 sufficient grounds to warrant denial without further consideration. Id. 4 Plaintiffs’ motion suffers an additional fatal procedural flaw. Pursuant to the local rules, a

5 motion for reconsideration “shall not exceed 2,100 words or, if written by hand or with a 6 typewriter, six pages.” LCR 7(e)(1); see also LCR 7(d)(1). Further, the movant must provide a 7 “certification of the signer as to the number of words” included in the motion. LCR 7(e)(6). 8 Plaintiffs fail to include the required certification. Regardless, Plaintiffs’ motion brief spans 19 9 pages of text, which by any count, far exceeds the allowable word limit for such motions. 10 Plaintiffs have previously been admonished that they would be held to the applicable rules of 11 practice despite their pro se status. See Dkt. No. 11 at 2–3. The Court may therefore disregard 12 any text beyond page 6 of Plaintiffs’ motion. LCR 7(e)(6). This briefing failure also precludes 13 the Court from granting the request to reconsider. 14 Even if the Court were to consider the entire motion, Plaintiffs’ fail to establish sufficient

15 grounds for reconsideration. Reconsideration is appropriate only upon a showing of “manifest 16 error in the prior ruling or . . . new facts or legal authority which could not have been brought to 17 [the Court’s] attention earlier with reasonable diligence.” Id. at 7(h)(1). The Court did not err in 18 concluding that Plaintiffs’ prior motion to appoint counsel was both procedurally and 19 substantively insufficient to warrant the exceptional circumstance of appointment of legal 20 counsel in a civil case. Nothing in Plaintiffs’ motion for reconsideration indicates error in the 21 Courts’ prior analysis. Plaintiffs simply argue that the Court made incorrect assumptions 22 regarding Jayakrishnan Nair’s indigency status based on the information available to the Court at 23 the time. Plaintiffs fail to explain what, if any, of their newly asserted information could not have

24 been presented to the Court “earlier with reasonable diligence.” Id. Plaintiffs also fail to address 1 the other grounds upon which the Court’s decision was based, which independently justify its 2 denial of the motion to appoint counsel despite Jayakrishnan Nair’s alleged indigency. 3 The Court therefore DENIES Plaintiffs amended motion for reconsideration of its order 4 denying appointment of counsel.

5 B. Plaintiffs’ Motion for Reconsideration of Dismissal Fails

6 Plaintiffs fail to assert the specific grounds upon which they seek reconsideration.2 As far 7 as the Court can tell, Plaintiffs do not assign error to the Court’s conclusion that they failed to 8 respond or cure their pleading deficiencies in a timely fashion as the Court directed in its order to 9 show cause. See Dkt. No. 14. Instead, Plaintiffs appear to provide an excuse for their late 10 response and assert that all of the deficiencies identified by the Court have now been cured. Id. 11 “A motion for reconsideration ‘may not be used to raise arguments or present evidence for the 12 first time when they could reasonably have been raised earlier in the litigation.’” Marlyn 13 Nutraceuticals, Inc., 571 F.3d at 880 (quoting Kona Enters., Inc., 229 F.3d at 890). Plaintiffs 14 therefore fail to meet the high standard required to justify the disfavored remedy of 15 reconsideration. 16 That said, while purporting to be a motion for reconsideration, Plaintiffs’ motion could be 17 liberally construed as actually seeking relief from the Court’s deadline for responding to its order 18 to show cause. Such a request would normally be governed by the good cause standard 19 applicable under Rule 16 of the Federal Rules of Civil Procedure. Good cause, for the purposes 20

21 2 This motion appears to be signed by Rajakumari Susheelkumar only, and there is no indication that any of the other named individuals or entities join this motion (Dkt. No. 14 at 6), although Jayakrishnan Nair provides a 22 separate affidavit purporting to support his claim of indigency, presumably related to the motion for reconsideration of the order denying appointment of counsel (see Dkt. No. 16). The Court has already informed the Plaintiffs that the law in this district states that “a non-lawyer ‘has no authority to appear as an attorney for others than himself.’” 23 Johns, 114 F.3d at 877 (quoting C.E. Pope Equity Tr., 818 F.2d at 697). Thus, even if this motion was successful, it would not save any claims in the Complaint other than those directly related to Rajakumari Susheelkumar as an 24 individual plaintiff. But, since the motion fails, the Court need not address this deficiency. 1 of Rule 16(b), looks to whether a scheduled deadline could not “‘reasonably be met despite the 2 diligence of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 3 604, 609 (9th Cir. 1992) (quoting Fed. R. Civ. P. 16 advisory committee’s note to 1983 4 amendment). Here, Plaintiffs appear to argue that they failed to timely reply to the order to show

5 cause due to the unexpected death of Omana Thankamma. Dkt. No. 14 at 1–2. Even if the Court 6 were to accept this explanation to excuse the lateness of their response, the Court disagrees that 7 Plaintiffs have cured any of the deficiencies identified in its order to show cause. 8 The Court was explicit regarding the actions required to avoid dismissal. Plaintiffs argue 9 that all of the Court-identified deficiencies have now been cured by the Amended Complaint 10 filed contemporaneously with their motion for reconsideration (see Dkt. No. 15) and because 11 “attorney Ms. Shanece Dedeaux has agreed to represent the business entities.” Dkt. No. 14 at 3. 12 But Plaintiffs’ Amended Complaint does not “clarify[] the individual plaintiffs in this action.” 13 See Dkt. No. 11 at 3. The caption of the Amended Complaint still includes individuals and 14 business entities named as Plaintiffs not discussed in the section describing the relevant parties,

15 several of whom are also not represented on the signature page of the Amended Complaint. See 16 Dkt. No. 15 at 1, 9, 140. Further, it appears that Jayakumar Nair and Rajakumari Susheelkumar 17 still intend to assert claims on behalf of Omana Thankamma, who is now deceased, and 18 Jayakrishnan Nair, who they claim is disabled and “is in catatonic depression,” without legal 19 representation. Dkt. No. 14 at 3. The Court was clear that this would not be permitted. Dkt. 20 No. 11 at 4. Regarding Ms. Dedeaux’s representation of the business entities, the Court was clear 21 that counsel was required to note an appearance on the business entities’ behalf to avoid 22 dismissal. Plaintiffs’ claim of agreement by Ms. Dedeaux is insufficient and unsupported by the 23 record, since Ms. Dedeaux is not listed as representative counsel for the business entities on the

24 1 Amended Complaint and has never otherwise entered an appearance on behalf of any party in 2 this case, despite now having over three months since the Court’s order to show cause to do so. 3 Finally, Plaintiffs’ fear that some of their claims could be precluded by the statute of 4 limitations in a newly filed case does not provide grounds to excuse Plaintiffs’ procedural

5 failures and pleading deficiencies in this case. The Court has objectively applied the rules and 6 standards that govern federal court proceedings. “[I]t is axiomatic that pro se litigants, whatever 7 their ability level, are subject to the same procedural requirements as other litigants.” Muñoz, 28 8 F.4th at 978. It would be inappropriate for the Court to grant an exception to Plaintiffs, as the 9 Court cannot “serve as advocate[] for pro se litigants.” Khalid, 409 F. Supp. 3d at 1031. 10 Plaintiffs’ motion for reconsideration of the Court’s Order of Dismissal is DENIED and 11 this case shall remain DISMISSED. No further motions or pleadings will be considered in this 12 action absent a mandate from the Ninth Circuit Court of Appeals. 13 IV. CONCLUSION 14 Plaintiffs’ motions for reconsideration (Dkt. Nos. 14, 18) are DENIED. This case remains

15 DISMISSED, and the Court’s prior judgment (Dkt. No. 13) remains undisturbed. 16 Dated this 19th day of October 2023. 17 A 18 Tana Lin United States District Judge 19 20 21 22 23 24