United States District Court, W.D. Washington, Seattle
ROBERT E. CARUSO and SANDRA L. FERGUSON, Plaintiffs,
WASHINGTON STATE BAR ASSOCIATION, et al., Defendants.
ORDER DENYING MOTION TO VACATE JUDGMENT AND
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on pro se Plaintiff
Sandra L. Ferguson's Motion to Vacate Judgment and Amend
Pleading, brought pursuant to Rules 59(e), 60(b)(1),
60(b)(2), and/or 60(b)(6). Dkt. #50.
11, 2017, the Court issued an Order granting Defendants'
Motion to Dismiss and dismissing all of Plaintiffs'
claims with prejudice. Dkt. #28. A judgment followed that
same day. Dkt. #29. On June 8, 2017, Ms. Ferguson attempted
to file a motion similar to the instant motion. See
Dkt. #38. The Court struck that filing as it violated Local
Rule 83.2(b)(4)'s prohibition on parties from filing
pro se without leave of the Court. Dkt. #42. Ms.
Ferguson subsequently obtained leave to proceed pro
Ferguson argues in the instant Motion that “if the
Court had granted leave to amend, Ferguson could have cured
the deficient pleadings.” Dkt. #50 at 1. Ms. Ferguson
presents substantial new facts and argument, and attaches
hundreds of pages of purported new evidence. Id.;
Dkts. #50-2, #50-3, and #51 (and attachments). Ms. Ferguson
argues that there is “newly-discovered evidence,
” and that she should be permitted to join Brian Waid
as a defendant. Dkt. #50 at 10. Ms. Ferguson acknowledges
that a motion under Rule 59(e) must be brought within 28 days
of the entry of judgment, but fails to explain how the
instant motion does not violate that deadline. See
Id. at 10. Ms. Ferguson briefly cites to Rule 60(b)(1)
and (2) as bases for her requested relief, but does not cite
that rule's “reasonable time” deadline or
explain why the instant Motion satisfies that requirement.
See Id. at 11. Ms. Ferguson does not discuss Rule
60(b)(6). Ms. Ferguson states via declaration that the facts
on which she bases her Motion are “facts which I could
have alleged prior to dismissal of this case. . .” Dkt.
# 51 at 1.
Response, Defendants argue that “Ferguson's
‘new' evidence consists of descriptions of prior
disciplinary matters and lawsuits personally involving
Ferguson and dating back over a decade, ” and that Ms.
Ferguson “ignores that raising a new legal theory at
this late stage is inappropriate, and that her lawsuit was
dismissed for failure to state a claim, not insufficient
evidence.” Dkt. #53 at 2. Defendants also argue that
the new evidence “lacks relevance or weight and would
not have affected the outcome here.” Id.
Reply, Ms. Ferguson argues that her motion was
“originally filed within 28 days of the Court's
entry of judgment on June 8, 2017.” Dkt. #55 at 5. Ms.
Ferguson argues that some of the new evidence was not always
available to her, because it came from “two recent,
overlapping investigations of Ferguson which began in
December 2015. . .” Id. at 5. Ms. Ferguson
further discusses the merits of her new arguments.
Rule 59, a motion for a new trial or to alter a judgment
“must be filed no later than 28 days after the entry of
the judgment.” Fed.R.Civ.P. 59(b) and (e). Under Rule
60, a motion for relief from judgment based on newly
discovered evidence must be filed “within a reasonable
time, ” no later than a year after entry of judgment,
and based on evidence that “could not have been
discovered in time to move for a new trial under Rule
59(b).” Rule 60(b)(2), (c)(1). The Court cannot extend
these deadlines. Fed.R.Civ.P. 6(b)(2). Vacating a prior
judgment under Rule 59 or Rule 60 is an “extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); see
also Lindauer v. Rogers, 91 F.3d 1355, 1358 (9th Cir.
1996). For relief from judgment based on newly discovered
evidence, “the movant must show the evidence (1)
existed at the time of the trial, (2) could not have been
discovered through due diligence, and (3) was of such
magnitude that production of it earlier would have been
likely to change the disposition of the case.”
Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th
Cir. 1990) (internal quotes omitted). The test is the same
under Rule 59(e) or 60(b)(2), except the later deadline for a
Rule 60(b)(2) motion “may require a stronger
initial matter, the Court finds that the instant Motion is
untimely under Rule 59(e). Procedurally, it is irrelevant
that Ms. Ferguson filed a prior, stricken Motion within the
deadline. The Court further agrees with Defendants that Ms.
Ferguson has failed to present sufficient facts or argument
showing that she could not have discovered the
“new” evidence at issue within the deadline for
filing a Rule 59 motion. Thus, relief under Rule 59 or
60(b)(2) is unavailable. Based on the record, Ms. Ferguson
had knowledge of the vast majority of the evidence at issue
for years before the filing of this Motion, and certainly
prior to dismissal of this case. Her attorney did not present
this evidence. Defendants argue, and the Court agrees, that a
motion to vacate “may not be used to . . . present
evidence for the first time when [it] could reasonably have
been raised earlier in the litigation.” Dkt. #53 at 6
(citing Carroll, 342 F.3d at 945). Likewise, a
party's “failure to file documents in an original
motion or opposition does not turn the late filed documents
into ‘newly discovered evidence.'”
Id. (citing Sch. Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Wallis v.
J.R. Simplot Co., 26 F.3d 885, 892 n.6 (9th Cir. 1994)
(rejecting “tardy affidavit” offered in support
of reconsideration of discrimination claim)). Ms.
Ferguson's passing reference to Rules 60(b)(1) and
60(b)(6) are insufficient to obtain relief on those grounds.
To the extent that Ms. Ferguson raises new legal theories,
such cannot be brought for the first time in a Rule 59 or 60
Motion. See, e.g., Carroll, 342 F.3d at 945
(“A Rule 59(e) motion may not be used to raise
arguments . . . for the first time when they could reasonably
have been raised earlier in the litigation.”). Finally,
the Court notes that, even if it were procedurally proper to
review the evidence and argument presented by Ms. Ferguson,
such would likely not be sufficient to change the outcome of
this case for the reasons articulated by Defendants in their
having reviewed the relevant briefing and the remainder of
the record, the Court hereby finds and ORDERS that Plaintiff
Sandra Ferguson's Motion to Vacate Judgment and ...