Free Memorandum in Opposition - District Court of California - California

Case 3:07-cv-02400-SI

Document 124

Filed 08/26/2008

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MILLER BROWN & DANNIS 71 STEVENSON STREET, 19TH FLOOR SAN FRANCISCO, CA 94105

AMY R. LEVINE, State Bar No. 160743 [email protected] DAMARA MOORE, State Bar No. 215678 [email protected] MATTHEW JUHL-DARLINGTON, State Bar No. 215375 [email protected] MILLER BROWN & DANNIS 71 Stevenson Street, 19th Floor San Francisco, CA 94105 Telephone: (415) 543-4111 Facsimile: (415) 543-4384 Attorneys for Defendant MOUNT DIABLO UNIFIED SCHOOL DISTRICT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Trial: Not Set v. MOUNT DIABLO UNIFIED SCHOOL DISTRICT, Defendant. RYAN PETERSEN, Plaintiff, Case No. C07-02400 SI DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION RE: F.R.C.P. 52(B), RE: AMEND FINDINGS OF COURT, MAKE ADDITIONAL FINDINGS OF COURT, AMEND JUDGMENT OF 8/1/08 ACCORDINGLY Date Time Dept Judge : : : : September 19, 2008 9:00 a.m. Courtroom 10, 19th Fl. Hon. Susan Illston

Michael Petersen's latest motion is entirely frivolous and in direct defiance of the Court's warning in its August 1, 2008 order granting summary judgment that he refrain from further conduct of a vexatious and harassing nature. There is absolutely no basis to amend the Court's "findings" or to amend the judgment and plaintiff has not actually presented any in his motion. His motion should be denied and sanctions imposed. Plaintiff moves to amend the August 1, 2008 order and judgment under Federal Rule of 1
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION RE: F.R.C.P. 52(B), RE: AMEND FINDINGS OF COURT, MAKE ADDITIONAL FINDINGS OF COURT, AMEND JUDGMENT OF 8/1/08 ACCORDINGLY; CASE NO. C07-02400 SI

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Case 3:07-cv-02400-SI

Document 124

Filed 08/26/2008

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MILLER BROWN & DANNIS 71 STEVENSON STREET, 19TH FLOOR SAN FRANCISCO, CA 94105

Civil Procedure 52(b). However, Rule 52, on its face, does not apply to rulings on summary judgment. Rule 52 applies to "actions tried upon the facts without a jury or with an advisory jury," and requires findings of fact and conclusions of law in such a case. Fed. R. Civ. Pro. 52(a). There was no trial in this matter, and judgment was entered pursuant to defendant's motion for summary judgment under Rule 56, not pursuant to Rule 52. Moreover, Rule 52(a) says that "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule ... 56 ...." Moreover, no findings of fact and conclusions of law were issued in this case and none were necessary. Randolph-Sheppard Vendors of America, Inc. v. Harris, 628 F.2d 1364, 1368, (9th Cir. 1980). Therefore, there are no "findings" which plaintiff can seek to amend. Furthermore, even if Rule 52 did apply, plaintiff has made no attempt to meet its standard. Rule 52(a), which is not cited by plaintiff, says that "[f]indings of fact, ... shall not be set aside unless clearly erroneous ...." Plaintiff has done nothing more than ask the Court to "re-review" the evidence and arguments already considered by the Court and has not even bothered to explain why the findings were erroneous, let alone clearly erroneous. (Doc. 122, at, e.g., 2:1-6, 3:16-4:8). Further, he has once again asked the Court to set a settlement conference, after closure of this case, despite the fact that his previous four (4) requests for settlement conferences have been denied. (Doc. 122, at 2:1; Doc. 119, at 10:19; Doc. 97; and Doc. 51, at 1:17). In its August 1, 2008 order, the Court admonished Mr. Petersen about his frivolous filings and warned him that he would be considered a vexatious litigant if he continued to engage in such actions. It stated: The Court hereby advises Randi and Michael Petersen that the Court will be strongly inclined to declare either of them as a vexatious litigant and impose a pre-filing order if either files any further lawsuits against the Mount Diablo School District (or any of the previously-named defendants) regarding the same matters litigated in the Petersens' unsuccessful lawsuits. The Court is already familiar with the history of the Petersens' litigation, and any future lawsuit filed by either of the Petersens against the 2
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION RE: F.R.C.P. 52(B), RE: AMEND FINDINGS OF COURT, MAKE ADDITIONAL FINDINGS OF COURT, AMEND JUDGMENT OF 8/1/08 ACCORDINGLY; CASE NO. C07-02400 SI

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Document 124

Filed 08/26/2008

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MILLER BROWN & DANNIS 71 STEVENSON STREET, 19TH FLOOR SAN FRANCISCO, CA 94105

District would normally be assigned to this Court. Particularly in light of the facts that Ryan and Mikey have not been enrolled in the District since 2003, and Mr. Petersen does not intend to reenroll them in the District, the Court is highly skeptical that any additional meritorious lawsuits could be filed against the District. (Doc. 119, at 10:7-15). Merely ten days after the Court told Mr. Petersen that this lawsuit lacked merit, and that he was not to file any further actions regarding the same matters already litigated, he has filed a motion renewing his same failed arguments. If this is not defiance, then what is? The District renews its request that the Court impose a pre-filing order on the Petersens to prevent further harassment of the District. In the alternative, it seeks whatever monetary or non-monetary sanctions the Court deems appropriate under Rule 11(c)(1)B) or its inherent authority. See, e.g., Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994) (imposing sanctions under Rule 11 for filing a renoticed motion to correct the court's order regarding attorneys fees); Edgerly v. City and County of San Francisco, 495 F.3d 645, 661-662 (9th Cir. 2007) (upholding monetary sanctions against a party and his attorney under Rule 11 for filing two frivolous motions for reconsideration which did not raise any new issues); G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1109-11 (9th Cir. 2003) (upholding sanctions for a motion for relief from judgment based on the same arguments previously rejected by the court). DATED: August 26, 2008 MILLER BROWN & DANNIS

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By: /s/ Amy R. Levine AMY R. LEVINE Attorneys for Defendant MOUNT DIABLO UNIFIED SCHOOL DISTRICT

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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION RE: F.R.C.P. 52(B), RE: AMEND FINDINGS OF COURT, MAKE ADDITIONAL FINDINGS OF COURT, AMEND JUDGMENT OF 8/1/08 ACCORDINGLY; CASE NO. C07-02400 SI

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