Opinion
No. CIV-03-0525-PCT-RCB.
February 27, 2007
ORDER
Introduction
Currently pending before the court are motions by defendants Experian Information Solutions, Inc. ("Experian") (doc. 308) and ConsumerInfo.com, Inc. ("CIC") (doc. 312) for summary judgment pursuant to Fed.R.Civ.P. 56. Alternatively, Experian is moving for partial summary judgment on "Plaintiff's claims pursuant to the Fair Credit Report Act ("FCRA"), the Arizona Fair Credit Reporting Act [("AzFCRA")], and Plaintiff's claim for punitive damages." Doc. 308 at 1. CIC also moves in the alternative, seeking partial summary judgment on plaintiff's FCRA and punitive damage claims. See Doc. 312 at 1.
Despite being court ordered to do so, plaintiff pro se Christine Baker did not file any opposition to these defense motions. Instead, she filed a motion for reconsideration and clarification (doc. 328) of this court's October 18, 2006 order. As part of that motion plaintiff also is seeking yet another extension of time in which to respond to the defense summary judgment motions. Additionally, she is seeking sanctions pursuant to LRCiv 83.1(f) based upon her belief that defense attorney Marc Carlson has violated the Local Rules, as well as court orders. Lastly, plaintiff is seeking clarification of the court's procedures regarding the filing of sealed documents.
Background
This is plaintiff's third attempt to have "all personal identifying information and open account numbers" removed from the exhibits which defendants filed as part of their summary judgment motions. Assuming familiarity with its prior decisions in this regard, suffice it to say that plaintiff has had limited success in these attempts. Her success has been limited because, for the most part, the defendants have complied with this District's Electronic Case Filing Administrative Policies and Procedures Manual ("the Manual") in terms of redacting "personal identifiers" from those exhibits.
Substantively, plaintiff's motion gains nothing by repetition. Moreover, as explained below, this motion to reconsider suffers from the additional infirmity that it is untimely. . . .
Discussion
A. Reconsideration 1. TimelinessPursuant to Local Rule 7.2(g), "[a]bsent good cause shown, any motion for reconsideration shall be filed no later than ten (10) days after the filing of the Order that is the subject of the motion." LRCiv 7.2(g) (emphasis added). Computing time in accordance with Fed.R.Civ.P. 6(a), means that plaintiff Baker had until November 1, 2006, to timely file this reconsideration motion. However, plaintiff filed this motion on November 6, 2006, more than ten days after the October 18, 2006, Order which she is seeking to have this court reconsider. Plaintiff Baker does not include a statement of good cause for the delay in filing her motion for reconsideration. Thus, the court finds that this motion is not timely.
To be sure, Fed.R.Civ.P. 60(b) allows a longer time frame for reconsideration motions than does LRCiv 7.2. Under the former Rule, reconsideration motions "shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). Plaintiff Baker did not specify the basis for her reconsideration motion. She cannot avail herself of the longer time frame in which to file such a motion under Fed R. Civ. P. 60(b), however, because the order which she is seeking to have this court reconsider is interlocutory in that no final judgment has yet been entered in this case. See United States v. Little, No. CV-F-02-5141 REC/DLB, 2006 WL 2432270, at *1 (E.D.Cal. Aug. 21, 2006) (Rule 60(b) does not "apply to defendants' [reconsideration] motion because no judgment has been entered in favor of the [plaintiff]."); see also Connors v. Iquique U.S.L.L.C., No. C05-334JLR, 2005 WL 3007127, at *7 (W.D.Wash. Nov. 9, 2005) (citing Santa Monica Baykeeper, 254 F.3d 882, 886-87 (9th Cir. 2001)) ("Rule 60(b) does not apply to non-final orders.") Stated somewhat differently, this court's October 18, 2006, order did not "end the litigation on the merits and leave nothing for the court to do but execute the judgment." See Catlin v. United States, 324 U.S. 229, 233 (1945). Quite the contrary, as is evidenced by the pending defense summary judgment motions, there are a host of issues which the court must resolve before entering a final judgment in this action. Therefore plaintiff cannot avail herself of the longer time frame for seeking reconsideration under Rule 60(b).
2. "Inherent Discretion"
Notwithstanding Rule 60(b) and the Local Rules, the court is fully aware of its "inherent discretion to reconsider interlocutory orders" such as this court's October 18, 2006 Order. See Hansen v. Schubert, 459 F.Supp.2d 973, 988 n. 5 (E.D.Cal. 2006). Indeed, as the Advisory Committee Notes to the 1946 amendments to Rule 60(b) make clear, "interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires." Fed.R.Civ.P. 60(b) Advisory Committee Notes (1946 Amendments); see also American Rivers v. NOAA Fisheries, No. CV-04-00061-RE, 2006 WL 1983178, at *2 (D.Or. July 14, 2006) (citing, inter alia, Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005)) (A "district court [has] inherent common-law authority to rescind or modify any interlocutory order as long as the court retains jurisdiction over the matter.") Despite the foregoing, Rule 60 provides a "helpful guide" to this court's inherent discretion. See Hansen, 459 F.Supp.2d at 998 n. 5.
Rule 60(b) allows a court to reconsider a prior order on a variety of grounds: "(1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) 'extraordinary circumstances' which would justify relief." Lee v. State Farm Mutual Automobile Insur. Co., No. CV 03-624-TUC-HCE, 2006 WL 2917348, at *1 (D.Ariz. Oct. 10, 2006) (quoting Backlund v. Barnhart, 778 F.3d 1386, 1388 (9th Cir. 1985)). Plaintiff Baker is not relying upon any of these bases for reconsideration. Instead, she contends that defendants and their attorney, Marc Carlson, violated A.R.S. § 44-1373, because supposedly the exhibits filed as part of the defense summary judgment motions contain "personal identifying information and open account numbers." As an additional basis for reconsideration, plaintiff contends that the filing of those exhibits violates section 1681b of the FCRA. Even if timely, the court would decline to exercise its "inherent discretion" to reconsider its October 18, 2006 interlocutory order because plaintiff is not asserting any of the potential grounds for relief enumerated in Rule 60(b). See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (district court "properly denied" reconsideration motion where none of the Rule 60(b) factors were present); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (same). A motion for reconsideration is not a vehicle for raising arguments which could have been raised before, yet that is exactly what plaintiff Baker is seeking to do here. Grant v. I.R.S., No. MC06-0079-PHX-DGC, 2007 WL 158729, at *1 (D. Ariz. Jan. 16, 2007) (citing, inter alia, Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988)); see also Martinez-Vazquez v. I.N.S., 346 F.3d 903, 905 n. 4 (9th Cir. 2003), cert. denied, 543 U.S. 1095 (2005) (citation omitted) ("district court had discretion not to consider the [defendant's] new argument, advanced for the first time in its motion for reconsideration"). Nothing prevented plaintiff Baker, when she moved for a protective order on September 28, 2006, from arguing that the filing of the defense summary judgment exhibits violated either A.R.S. § 44-1373 or section 1681b of the FCRA. Thus, for all of these reasons the court denies plaintiff Baker's motion for reconsideration of its October 18, 2006 interlocutory order.
As an aside, the court observes that plaintiff's reliance upon A.R.S. § 44-1373 is wholly misplaced. Plaintiff is relying upon two different sub-parts of that statute. First, she is relying upon subpart (A)(1) which provides as follows:
Except as otherwise specifically provided by law, beginning on January 1, 2005, a person or entity shall not:
Intentionally communicate or otherwise make an individual's social security number available to the general public.
A.R.S. § 44-1373(A)(1) (West Supp. 2006). As explained in this court's prior orders, including its order of October 18, 2006, the challenged exhibits do not contain plaintiff's social security number. See Doc. 318 at 4; and Doc. 327 at 5. Thus, there has been no violation of section 44-1373(A)(1).
Plaintiff fares no better with her reliance upon sub-part (G)(1) of section 44-1373. That statute provides in relevant part:
Except as otherwise provided by law, documents or records that are recorded and made available on the recording entity's public web site after the effective date of this amendment to this section shall not contain more than five numbers that are reasonably identifiable as being part of an individuals' social security number and shall not contain an individual's:
Credit card, charge card or debit card numbers.
A.R.S. § 44-1373(G)(1) (West Supp. 2006) (emphasis added). Plaintiff completely overlooks the fact, however, that the effective date of that statute is January 1, 2007. See id. Therefore, it does not govern the present dispute which centers around documents filed in 2006.
Clearly this is not so at least with respect to defendant CIC. That statute states in pertinent part:
[A]ny consumer reporting agency may furnish a consumer report under the following circumstances and no other:
In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury.15 U.S.C. § 1681b(a)(1) (West Supp. 2006) (emphasis added). The FCRA broadly defines a consumer reporting agency as:
any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.15 U.S.C. § 1681a(f) (West 1998) (emphasis added).
In the present case, plaintiff does not, and indeed cannot, allege that defendant CIC is a consumer reporting agency within the meaning of the FCRA. CIC does not "assemble nor evaluate consumer credit information for the purposes of furnishing consumer reports to third parties to make credit decisions." Doc. 312 at 3-4. Rather, CIC "purchases credit data and products from credit bureaus, reformats it, and resells its credit products to the consumers who are the subject of those reports." Doc. 314 (Decl'n of David Williams (Aug. 30, 2006)) at 2, ¶ 3 (emphasis added). Thus, because CIC does not fall within the definition of a credit reporting agency for purposes of FCRA liability, it is not subject to section 1681b(a)(1) of that statute. Accordingly, even if plaintiff's motion was timely, her argument that she is entitled to reconsideration because CIC violated section 1681b(a)(1) of the FCRA is unavailing.
B. Extension of Time
As she did in her September 28, 2006, motion for a protective order, etc., plaintiff is seeking a thirty day extension of time in which to respond to defendants' summary judgment motions. Also, as she did in her prior motion, plaintiff requests that that thirty days commence running "AFTER all [her] credit reports with account numbers and personal data [a]re removed from PACER[.]" Doc. 328 at 12 (emphasis in original).
Although the court declines to grant plaintiff's motion for reconsideration, it will grant her an extension of time in which to respond to the pending summary judgment motions by Experian and CIC. The primary reason for granting this extension is that the court believes that the interests of justice will best be served by proceeding with a fully developed record on these motions. Thus, plaintiff shall file and serve a response to defendants' summary judgment motions (doc. 308 and 312) on or before 5:00 p.m., March 19, 2007. Plaintiff is forewarned that if she fails to timely respond, and/or instead makes the strategic decision which she did in this instance, i.e. to file a motion seeking another form of relief, she runs the risk of the court granting defendants' motions for summary judgment in their entirety.
In light of the foregoing, the defendants' shall have until on or before 5:00 p.m., March 28, 2007, by which to file a reply to plaintiff's response to their summary judgment motions. To the extent defendants are seeking summary judgment dismissing this action in its entirety, defendants' replies should address not only plaintiff's response arguments but they should also insure that they have thoroughly briefed each and every cause of action in plaintiff's FAC. . . . C. Clarification of Sealing Procedures
In this motion plaintiff is also "request[ing] clarification regarding the procedures to seal documents[.]" Doc. 328 at 16. Among other inquiries, plaintiff is asking whether "the Court [would] order the removal of documents from PACER if the filer requested so[.]" Id. The court will not entertain such hypothetical inquiries. What is more, in this court's opinion, there is no need for clarification of the procedures for sealing documents in this district. Therefore, the court denies this request.
D. Sanctions
As she has previously, plaintiff is seeking sanctions against attorney Carlson. Despite plaintiff's assertions to the contrary, defendant Carlson has not engaged in any sanctionable conduct. Therefore, the court denies this aspect of plaintiff's motion as well.
Conclusion
IT IS ORDERED that plaintiff Christine Baker's "Motion for Reconsideration and Clarification" (Doc. 328) is DENIED in its entirety.
IT IS FURTHER ORDERED that plaintiff Baker's response to the summary judgment motions previously filed by defendants Experian and CIC shall be filed on or before 5:00 p.m., March 19, 2007.
IT IS FURTHER ORDERED that defendants Experian and CIC shall . . . file a reply to plaintiff's response on or before 5:00 p.m., March 28, 2007.