Motion for Reconsideration- Tania Batache

XXX

XXX DISTRICT COURT

CENTRAL DISTRICT OF XXX

WESTERN DIVISION (XXX)

XXX, an individual, XXX Plaintiff

vs.

XXX., an individual, XXX Law Firm, JT Legal Group, APC; and Does 1-20, inclusive,

Defendants.

Case No. XXX MOTION FOR RECONSIDERATION AND FOR LEAVE TO ADD A SECOND AMENDED COMPLAINT

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD, Plaintiff, XXX, hereby submits her Motion to Reconsider the Judge’s Refusal to file Motions submitted timely. Plaintiff also seeks leave to add a second amended complaint.

Hon Magistrate XXX erroneously rejected both Plaintiff’s motions, Motion to clarify and set aside dismissal and motion for extension of time to file a second amended complaint.

Both Motions were served and submitted timely on December XXXX and received by this honorable court on December XXX, to address the Notice of Denial to Proceed in Forma Pauperis served by the Court Clerk on the grounds that the Notice was filed in the wrong forum. Consequently, the District Court Magistrate XXXX filed a Notice of Rejection to File (“Notice”), singed on December XXXX and entered and mailed out on December XXX on the grounds of FRCP 15, 41, 58.

Consequently, Plaintiff filed an objection to the magistrate’s rejection to file the motions. The said objection sent via Fedex to CA Central Disctict Court. It was received/signed on or about January XXX along with Plaintiff’s application to allow her electronic filing, both of which were ignored and were never entered as filed. EXHIBIT 1 (Objection).

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION

INTRODUCTION

This case arises from Plaintiff’s complaint of legal malpractice against the Defendants.

On or about November XXX, the Court, in addition to denying several of Plaintiff’s requests to the Court, dismissed the case.

On or about December XXX, Plaintiff submitted two motions: Motion to clarify and set aside dismissal; and motion for extension of time to file a second amended complaint.

On or about December XXX, the Court dismissed the aforesaid motions, despite the fact that the Motions adhered to all relevant rules.

Pursuant to Rule 60 of the Federal Rules of Civil Procedure, Local Rule 7-18, and Rule 15(a) of the Federal Rule of Civil Procedure, the Plaintiff hereby files her Motion for Reconsideration, and leave to add a second amended Complaint.

LEGAL STANDARD

A final order may be reconsidered “under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from judgment).” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).

Rule 60(b) sets forth the following grounds for relief from a final judgment, order, or proceeding: (1) “mistake, inadvertence, surprise, or excusable neglect”; (2) “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial”; (3) fraud; (4) a void judgment; (5) a satisfied, released, or discharged judgment; or, (6) “any other reason that justifies relief.” Fed. R. Civ. P. 60(b); see also Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d at 899 (9th Cir. 2001).

As a remedial provision, Rule 60(b) is to be `liberally construed for the purpose of doing substantial justice.'” Patton v. Sec’y of the Dep’t of Health Human Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994) (quoting 7 James Wm. Moore et al., Moore’s Federal Practice ¶¶ 60.18[8], 60.19 (2d ed. 1993)).

Under Local Rule 7-18, a party may seek reconsideration “… on the grounds of … (c) a manifest showing of a failure to consider material facts presented to the court before the decision.” C.D. Cal. L.R. 7-18. “Whether to grant a motion for reconsideration under Local Rule 7-18 is a matter within the court’s discretion”. Daghlian v. DeVry Univ., Inc., 582 F. Supp. 2d 1231, 1251 (C.D. Cal. 2007). Local rules have the force and effect of law so long as they are not inconsistent with a statute or the Federal Rules. See Atchison, Topeka & Santa Fe R.R. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998). A court should not depart from the local rules unless the effect on the parties’ rights would be “so slight and unimportant that the sensible treatment is to overlook it.” Prof’l Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994).

III

DISCUSSION

PLAINTIFF’S MOTION IS BROUGHT ON PROPER GROUNDS UNDER RULE 60(b) AND LOCAL RULE 7-18.

First, Plaintiff also brings this Motion pursuant to Rule 60(b)(1) because the judge was inadvertent. Plaintiff also relies on Rule 60(b)(6) because denying Plaintiff’s motion would amount to a denial of justice for Plaintiff.

Further, Plaintiff brings the Motion pursuant to Local Rule 7-18 (3), because the court exhibited a manifest failure to consider the material facts presented to the Court. C.D. Cal. L.R. 7-18 (3).

The Judge was inadvertent, and the Court’s denial of the Motions amounts to a denial of justice for Plaintiff. (Per Rule 60(b)(1) and (6).

RCFC 60(b)(6) allows a court to relieve a party from a final order for “any other reason justifying relief from the operation of the judgment.” This is commonly referred to as the “catch-all provision.” See Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002); Moore’s Federal Practice, supra at § 60.48[1]. “Rule 60(b)(6) is available only in extraordinary circumstances and only when the basis for relief does not fall within any of the other subsections of Rule 60(b).”Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d at 1382 (citing Marquip, Inc. v. Fosber America, Inc., 198 F.3d 1363, 1370 (Fed. Cir. 1999), reh’g denied (Fed. Cir. 2000); Provident Sav. Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995)). In the instant case, the Plaintiff’s circumstance is extraordinary because Plaintiff’s Motions were denied yet they adhered to all the applicable rules, as shall be discussed hereinbelow.

The judge was inadvertent when he/she failed to exercise care in allowing Plaintiff to file her two motions namely: Motion to clarify and set aside dismissal; and motion for extension of time to file a second amended complaint. The said Motions were fully adherent to all relevant rules. Besides, the Court dismissed Plaintiff’s Motions, yet plaintiff’s issues were not completely adjudicated upon. It is because of this that Plaintiff filed a second Motion to seek clarification of the Judge’s orders dismissing the Motion for Extension of Time. This was also dismissed suo motto and the court refused to admit the same for consideration.

Plaintiff’s denial of justice is seen in a variety of ways. First, the Court was wrong to state that it lacks jurisdiction over Plaintiff’s case. Plaintiff avers that the court has jurisdiction over the federal claims under 28 U.S.C. §§ 1331. Plaintiff’s action also raised federal questions under 28 U.S.C. § 1452 which provides that a party may remove a claim to the district court for the district where the claim is pending if the district court has jurisdiction under 28 U.S.C. § 1334. The Court has subject matter jurisdiction over a legal malpractice claim brought against the debtor’s former counsel more than a year after bankruptcy proceedings concluded. Charles Mercer and Anna Mercer v Rodney Allen and Allen, Civil Action No. 7:13-CV- 148 (HL). Lastly, Venue is proper in this district under 28 U.S.C. § 1391(b) because the Defendants reside in this district and/or the acts described in the Amended Complaint occurred in this district.

Plaintiff would also be denied justice because the Court failed to liberally construe Plaintiff’s case. The law requires Courts to be liberal in hearing and determining cases, within the legally permitted restraints. Notably, Pleadings are liberally construed, Fed. R. Civ. P. 8(f); Conley v. Gibson, 355 U.S. 41 (1957). Besides, amendments should also be freely allowed. Fed. R. Civ. P. 15(a). Even if amendments are not offered, the court can treat the pleadings as though they had been amended, when justice so requires, Fed. R. Civ. P. 15(b), and may grant parties the relief to which they are entitled even though they never asked for it. Fed. R. Civ. P. 54(c). If the process still goes awry, despite all these opportunities to correct procedural errors, the court may grant relief from judgment under Fed. R. Civ. P. 60(b) or a new trial under Fed. R. Civ. P. 59. Therefore, Plaintiff’s Motions should be granted because she would suffer injustice consequential to the denial of the said Motions. Relief from judgment will be granted if substantial rights of the party will be harmed by the judgment. Dynacs Eng’g Co. v. United States, 48 Fed. Cl. 240, 242 (2000).

“Rule 60(b) enables a court to grant a party relief from a judgment in circumstances in which the need for truth outweighs the value of finality in litigation.” 12 James Wm. Moore et al., Moore’s Federal Practice § 60.02[2] (3d ed. 2003). The court has discretion regarding whether to grant relief under Rule 60(b), “and the court may weigh equitable considerations in the exercise of its discretion.” Dynacs Eng’g Co. v. United States, 48 Fed. Cl. 240, 241-42 (2000); see also Moore et al., supra, § 60.22[1] (“The decision as to whether relief should be granted is committed to the sound discretion of the court. “); id. § 60.22[5] (“The relief provided by Rule 60(b) is equitable in nature. . .. “).”

Accordingly, in the instant case, Plaintiff had a right to be heard. A right to a hearing entails that an individual maintains and be afforded the legal right to be heard in the venue of a court of law with adequate due process attached. U.S. Const. Amend. VI and XIV. It follows; Plaintiff must be afforded all the legal rights she deserves in accordance with Federal law. Plaintiff is also entitled to object to the Court’s ruling. In Sharpe v. State, 560 So. 2d 1107 (Ala. Crim. App. 1989), the court observed that “Opportunity to be heard” is synonymous with the phrase “opportunity to object”. It follows; Plaintiff’s Objection should not be denied, and the Court should address Plaintiff’s claims.

The court exhibited a manifest failure to consider the material facts presented to the court. (Per Local Rule 7-18 (3)).

The facts in Plaintiff’s claims are material. Facts are material if they might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

Dismissal of Plaintiffs’ Motions for any of the conditions where factual matters are at issue would be clearly erroneous and contrary to law. The Court’s Report errs both in presuming that there is “no dispute that [resolution of] this motion involves only legal issues” (Report, 7) and in failing to “take as true” Plaintiffs’ allegations about the facts.

THE COURT SHOULD ALLOW PLAINTIFF’S SECOND AMENDED COMPLAINT

The basic test to determine whether a Complaint warrants dismissal for “failure to state a claim upon which relief can be granted” originated in Conley v. Gibson, 355 U.S. 41 (1957). In appraising the sufficiency of the Complaint, we follow the accepted rule that a Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id., at 45-46. This has been held to mean that;

“No matter how reasonably it may be surmised or predicted that a Plaintiff will be unable to establish on a trial the claim stated in his Complaint or to obtain any relief, he is, nevertheless, entitled to make the attempt unless it appears beyond doubt that he can prove no set of facts in support of his claim which would entitle him to any relief”. Thomason v. Hospital T.V. Rentals, Inc., 272 F.2d 263, 266 (8th Cir., 1959).

The Ninth Circuit very recently reiterated these basic principles in the following words:

“A Complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. … The Complaint must be construed favorably to the Plaintiff, and the court is bound to give the Plaintiff the benefit of every reasonable inference to be drawn from well-pleaded facts”. Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir., 1998)

It follows; this honorable Court should allow Plaintiffs’ Complaint because the amended Complaint alleges unresolved factual issues. Also, the Complaint raises legal questions of first impression under existing and developing theories of law.

CONCLUSION

For the foregoing reasons and reasons set forth herein, Plaintiff prays that this Honorable Court grants Plaintiff’s Motion for Reconsideration and grants leave for Plaintiff to file Plaintiff’s Second Amended Complaint.

Respectfully submitted this [ENTER DATE]

________________________

XXX, Pro Se

CERTIFICATE OF SERVICE

Plaintiff affirms that a copy of the above was served upon all the parties to this action by electronic and/or U.S. mail to their respective addresses as stated below:

[ENTER ADDRESSES]

DATE: ________________

________________________

XXX, Pro Se

ADDENDUM

EXHIBIT 1

(OBJECTION)

XXX DISTRICT COURT

CENTRAL DISTRICT OF XXX

WESTERN DIVISION (XXX)

XXX, an individual, aka XXX Plaintiff

vs.

XXX., an individual, XXX, inclusive,

Defendants.

Case No. XXX OBJECTION TO MAGISTERATE JUDGE’S REFUSAL TO FILE MOTIONS SUBMITTED TIMELY

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD, Plaintiff, TANIA BATACHE, hereby submits her Objection to Magistrate Judge’s Refusal to file Motions submitted timely.

Hon Magistrate Judge Karen L. Stevenson erroneously rejected both Plaintiff’s motions, Motion to clarify and set aside dismissal and motion for extension of time to file a second amended complaint.

Both Motions were served and submitted timely on December XXX and received by this honorable court on December 16, 2020, to address the Notice of Denial to Proceed in Forma Pauperis served by the Court Clerk on the grounds that the Notice was filed in the wrong forum. Consequently, the District Court Magistrate XXX filed a Notice of Rejection to File (“Notice”), singed on December XXX and entered and mailed out on December XXX on the grounds of XXX.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE OBJECTION

INTRODUCTION

This case arises from Plaintiff’s complaint of legal malpractice against the Defendants.

On or about November XXX , the Court, in addition to denying several of Plaintiff’s requests to the Court, dismissed the case.

On or about December XXX , Plaintiff submitted two motions: Motion to clarify and set aside dismissal; and motion for extension of time to file a second amended complaint.

On or about December XXX, the Court dismissed the aforesaid motions, despite the fact that the Motions adhered to all relevant rules.

Pursuant to Local Rules and within the time requirement for lodging an Objection, the Plaintiff hereby files her Objections to the Report, for the following reasons:

The dismissal erroneously assumes that the issue of malpractice had been adjudicated upon;

The court erroneously refused to confer jurisdiction upon itself, holding that it lacked jurisdiction when in the real sense it has jurisdiction to grant extension of time and adjudicate on malpractice claims;

The Court erroneously finds the motions res judicata and fails to admit the second Motion, despite the fact that the said Motion and the Amended Complaint contains facts and grounds that establish Plaintiff’s legal malpractice claim;

The Dismissal fails to give regard to the fundamental rights and freedom of being heard and the second Motion is not only rejected but is not considered on its entirety;

The Honorable District judge asserts that there are no issues of material fact to be resolved in these matters; and

The dismissal fails to follow the basic principles of decision for the purpose of a motion to dismiss under F.R.C.P. Rule 12(b)(6);

all as set forth and discussed below.

ARGUMENTS

The issue(s) in Plaintiff’s Complaint have not been adjudicated upon conclusively.

The honorable court failed to express itself on whether the dismissal was final on all the issues raised. It is because of this that Plaintiff filed a second Motion to seek clarification of the Judge’s orders dismissing the Motion for Extension of Time. This was also dismissed suo motto and the court refused to admit the same for consideration. In determining whether to certify an order under Fed. R. Civ. P. 54(b), the District Court must first determine whether the order is a final judgment. See Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7 (1980). “It must be a ‘judgment’ in the sense that it is a decision upon a cognizable claim for relief, and it must be ‘final’ in the sense that it is ‘an ultimate disposition of an individual claim entered in the course of a multiple claims action.’” Id. (citation omitted).

The District Court must then determine whether there is any just reason for dismissal. The Court should consider: (1) the interrelationship of the certified claims and the remaining claims in light of the policy against piecemeal review; and (2) equitable factors such as prejudice and delay. ; Gregorian v. Izvestia, 871 F.2d 1515, 1518-20 (9th Cir. 1989); see also Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009) (the court of appeals must scrutinize the district court’s evaluation of factors such as “the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units”); Wood v. GCC Bend, LLC, 422 F.3d 873, 878-89 (9th Cir. 2005). These factors were not considered by the District Court. The District Court may sua sponte reconsider, rescind or modify a certified order under 54(b) until the appellate court grants a party permission to appeal. See City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001). The said order dismissing Plaintiff’s claim has never been received any proper direction from the Court that dismissed the application for extension of time to appeal.

This Court has Jurisdiction to hear and determine all issues raised by Plaintiff.

The Court was wrong to state that it lacks jurisdiction over Plaintiff’s case. Plaintiff avers that this court has jurisdiction over the federal claims under 28 U.S.C. §§ 1331. Plaintiff’s case constitutes racketeering as set forth in 18 U.S.C. § 1964(c). It follows; the Court has jurisdiction to hear and determine Plaintiff’s case on this ground.

This action also raises federal questions under 28 U.S.C. § 1452 which provides that a party may remove a claim to the district court for the district where the claim is pending if the district court has jurisdiction under 28 U.S.C. § 1334.

This Court has subject matter jurisdiction over a legal malpractice claim brought against the debtor’s former counsel more than a year after bankruptcy proceedings concluded. Charles Mercer and Anna Mercer v Rodney Allen and Allen, Civil Action No. 7:13-CV- 148 (HL).

Venue is proper in this district under 28 U.S.C. § 1391(b) because the Defendants reside in this district and/or the acts described in this Complaint occurred in this district.

The Motions are not Res Judicata

Res judicata does not apply in situations where a litigant’s case was decided unfairly. The Court in Eisel v. Columbia Packing Co. stated in this regard that: when applying res judicata, “… [I]nquiries should be made as to whether plaintiff had a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time…”. 181 F. Supp. 298, 301 (D. Mass. 1960).

The law requires Courts to be liberal in hearing and determining cases, within the legally permitted restraints. Notably, Pleadings are liberally construed, Fed. R. Civ. P. 8(f); Conley v. Gibson, 355 U.S. 41 (1957). Besides, amendments should also be freely allowed. Fed. R. Civ. P. 15(a). Even if amendments are not offered, the court can treat the pleadings as though they had been amended, when justice so requires, Fed. R. Civ. P. 15(b), and may grant parties the relief to which they are entitled even though they never asked for it. Fed. R. Civ. P. 54(c). If the process still goes awry, despite all these opportunities to correct procedural errors, the court may grant relief from judgment under Fed. R. Civ. P. 60(b) or a new trial under Fed. R. Civ. P. 59.

In that vein, Plaintiff maintains that, in the interest of justice, Plaintiff’s the Court should allow Plaintiff’s Motions, and permit the filing of the Amended Complaint.

Plaintiff has the right to be heard

A right to a hearing entails that an individual maintains and be afforded the legal right to be heard in the venue of a court of law with adequate due process attached. U.S. Const. Amend. VI and XIV. It follows; Plaintiff must be afforded all the legal rights she deserves in accordance with Federal law.

Plaintiff is also entitled to object to the Court’s ruling. In Sharpe v. State, 560 So. 2d 1107 (Ala. Crim. App. 1989), the court observed that “Opportunity to be heard” is synonymous with the phrase “opportunity to object”. It follows; Plaintiff’s Objection should not be denied, and the Court should address Plaintiff’s claims.

There are issues of genuine material facts.

The facts in Plaintiff’s claims are material. Facts are material if they might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

In the instant case, the issues are material and genuine. Plaintiff has sufficient proof of Defendants’ liability under the stated law.

The dismissal is not justified

The Judge believes that the factual allegations are not appropriate and are part of a previous claim that it relates to an already closed case. However, Rule 12(b)(6) does not countenance dismissals based on a Judge’s disbelief of a Complaint’s factual allegations. Neitzke v. Williams, 490 U.S. 319, 327 (1989). Rule 12(b)(6) requires the Court to take the well-pleaded allegations of the Complaint as true for the purpose of a Motion to Dismiss. City Of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986). Dismissal of Plaintiffs’ Motions for any of the conditions where factual matters are at issue would be clearly erroneous and contrary to law. The Court’s Report errs both in presuming that there is “no dispute that [resolution of] this motion involves only legal issues” (Report, 7) and in failing to “take as true” Plaintiffs’ allegations about the facts.

III

CONCLUSION

The Ninth Circuit very recently reiterated these basic principles in the following words:

Under a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must… examine the Complaint to determine if the allegations provide for relief on any possible theory. Wright & Miller, Federal Practice and Procedure: Civil, s 1219. [cited in Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir., 1974)].

The Court’s Order denying the Motions and dismissing the Complaint violates all rules for decision of motions under F.R.C.P. Rule 12(b)(6). Notably:

Plaintiffs’ Complaint alleges unresolved factual issues. Rather than “taking as true” and “construing favorably” these allegations, the Report rejects them or presumes they raise no material issues of fact.

Plaintiffs’ Complaint raises legal questions of first impression under existing and developing theories of law. Rather than “giving the plaintiff the benefit of every reasonable inference” and “examining the complaint to determine if the allegations provide for relief on any possible theory,” the Report decides against Plaintiffs’ allegations on the basis of misconstructions of law.

For the foregoing reasons and reasons set forth herein, the Court’s decision to deny Plaintiff’s Motion and to dismiss Plaintiff’s case is clearly erroneous and contrary to law and should be rejected and the Court set for hearing on Plaintiffs’ Complaint.

Respectfully submitted this XXX.

________________________

XXX, Pro Se

CERTIFICATE OF SERVICE

Plaintiff affirms that a copy of the above was served upon all the parties to this action by electronic and/or U.S. mail to their respective addresses as stated below:

[ENTER ADDRESSES]

DATE: ________________

________________________

XXX Pro Se

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Motion for Reconsideration- XXX

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