Petitt v. Altman

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 KARLENE PETITT, Cause No. C21-1366RSL 8 Plaintiff, ORDER 9 v. 10 DAVID B. ALTMAN, 11 Defendant. 12 13 On January 31, 2023, the Court found that plaintiff’s claims were barred by the 14 15 applicable statute of limitation and dismissed the above-captioned matter. Judgment was entered 16 that same day. Plaintiff filed a timely “Motion for Modification of and Relief from Judgment 17 Pursuant to Rule 59(e), Rule 60(b)(1), and Rule 60(b)(2).” Dkt. # 31.1 18 19 Relief from a judgment or order under Federal Rule of Civil Procedure Rule 59(e) may 20 be granted when the Court “(1) is presented with newly discovered evidence, (2) committed 21 clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in 22 23 controlling law.” Stoner v. Does, 1 - 10, 830 F. App’x 547 (9th Cir. 2020) (quoting Sch. Dist. 23 No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). Vacating a prior 25 26

27 1 Plaintiff specifically disavows any intent to file a motion for reconsideration under Local Civil 28 Rule 7(h). 1 judgment under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of 2 finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 3 2003). 4 5 Plaintiff does not offer newly discovered evidence that can be considered by the Court or 6 that is otherwise relevant to the dispositive statute of limitations issue. The details regarding 7 what plaintiff learned in October 2018 were known to her since that time and cannot plausibly 8 9 be characterized as “newly discovered.” With regards to plaintiff’s recitation of what a third- 10 party, Dr. Bruce Chien, told her in March 2022 and Dr. Chien’s recitation of facts he learned 11 after the fact (and about which he admits he has no personal knowledge), the declarations are 12 13 inadmissible under Fed. R. Ev. 602 and 802. Just as importantly, they do not offer any fresh 14 insight into when plaintiff knew or should have known that Dr. Altman acted with fraudulent or 15 deceitful intent. Nor does plaintiff argue that there has been an intervening change in controlling 16 17 law or that the adverse judgment was manifestly unjust. Instead, plaintiff argues that the Court 18 improperly applied the motion to dismiss standard and improperly considered documents 19 outside the pleadings. The allegations of the complaint and judicial records related to plaintiff’s 20 21 earlier lawsuit asserting the same fraud claim at issue here were properly considered under the 22 appropriate standard. The Court did not err in concluding that the record demonstrates as a 23 matter of law that plaintiff knew or should have known of her fraud claim more than three years 23 25 before the complaint was filed. Accordingly, relief under Rule 59(e) is not warranted. 26 The Court therefore turns to plaintiff’s request for relief under Federal Rule of Civil 27 Procedure 60(b)(1), which allows the Court to relieve a party from an Order based on “mistake, 28 1 inadvertence, surprise, or excusable neglect.” Such mistakes include the Court’s substantive 2 errors of law or fact. Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 3 2004). In order to obtain relief under Rule 60(b)(1), the movant “must show that the district 4 5 court committed a specific error.” Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989). 6 Plaintiff has not done so. 7 Finally, Rule 60(b)(2) identifies “newly discovered evidence that, with reasonable 8 9 diligence, could not have been discovered in time to move for a new trial under Rule 59(b)” as 10 grounds for relief from a judgment or order. The evidence regarding what plaintiff learned in 11 October 2018 is not “newly discovered,” and the declarations submitted are inadmissible and 12 13 irrelevant to the limitations issue. 14

15 For all of the foregoing reasons, plaintiff’s motion for relief from judgment or order is 16 17 DENIED. 18

19 Dated this 5th day of May, 2023. 20

21 22 Robert S. Lasnik United States District Judge 23

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