Opinion
CV 00-101-BR
July 6, 2001
PETER D. BOGART, Lake Oswego, OR, Pro Se Plaintiff.
MICHAEL W. MOSMAN, United States Attorney, OKIANER CHRISTIAN DARK, Assistant United States Attorney, Portland, OR, for Defendants William Daley, James Baker, Jeffery R. Benoit, David Kaiser, Bill Millhouser, Keelin Kuipers, and the United States of America (Federal Defendants).
HARDY MYERS, Attorney General of the State of Oregon, DANIEL H. ROSENHOUSE, Assistant Attorney General, Oregon Department of Justice, Portland, OR, BILL LOCKYER, Attorney General of the State of California, RICHARD M. FRANK, Assistant Attorney General, Los Angeles, CA, for Defendants California Coastal Commission, California Coastal Commissioners, Peter Douglas, G.R. Overton, and Daniel Olivas (California Defendants).
JONATHAN M. HOFFMAN, Martin, Bischoff, Templeton, Langslet Hoffman, LLP, Portland, OR, PAUL W. TOZER, JENNIFER K. DOHERTY, Kronick Moskovitz Tiedemann Girard, Sacramento, CA, for Defendants The Honorable David A. Workman and Joseph F. Fabrizio.
OPINION AND ORDER
This matter comes before the Court on the following motions:
1) Plaintiff Bogart's Motion for Leave to File Important Documentary Material of Judicial Notice, Which the Court Excluded for Failure to Bring Over from the Bankruptcy Court (#154) pursuant to Fed.R.Evid. 201;
As noted in the Court's Opinion and Order issued on August 4, 2000, Bogart is currently the only plaintiff before the Court in this matter. A pro se litigant can represent only his individual interests. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Although several corporate entities are named as interested plaintiffs in the caption of this action, corporations may appear only through licensed legal counsel. In re Bigelow, 179 F.3d 1164, 1165 (9th Cir. 1999). Bogart does not purport to be a licensed lawyer; therefore, only Bogart's claims are properly before the Court.
2) Plaintiff's Motion to Reopen the Motion Pursuant to Fed.R.Civ.P. 60(b) for Relief from Judgments Obtained by Fraud on the Court and Without Subject Matter Jurisdiction, and Without Standing to Sue Plaintiff (#148);
3) Plaintiff's Motion to Excuse Handwritten Pleading or Protective Notice of Appeal (#138);
4) Plaintiff's Application and Motion for Instructions on Procedural Matters (#144); and
5) Plaintiff's Motion for Rehearing/Reconsideration of Opinion and Order of March 19, 2001 (#139).
For the reasons that follow, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Leave to File Important Documentary Material of Judicial Notice (#154); DENIES Plaintiff's Motion to Reopen Motion Pursuant to Fed.R.Civ.P. 60(b)for Relief from Judgments (#148); GRANTS in part and DENIES in part as premature Plaintiff's Motion to Excuse Handwritten Pleading or Protective Notice of Appeal (#138); DENIES as moot Plaintiff's Application and Motion for Instructions on Procedural Matters (#144); and DENIES Plaintiff's Motion for Rehearing/Reconsideration of Opinion and Order of March 19, 2001 (#139).
PROCEDURAL BACKGROUND
Plaintiff brought this action on January 21, 2000. Defendants thereafter filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12 or for Summary Judgment pursuant to Fed.R.Civ.P. 56 on a number of grounds, including res judicata. In the Court's Opinion and Order issued on August 4, 2000, Defendants' Motions generally were denied with leave to renew upon provision of a sufficient factual record. At the same time, the Court granted Plaintiff's Motion to Substitute True Names for Fictitiously Named Defendants in which Plaintiff added Defendants Millhouser, Kuipers, and Kaiser as parties to this action.
The California Defendants then filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b), and the Federal Defendants filed a Motion for Joinder in the California Defendants' Motion to Dismiss and/or Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. Such Motions were based on multiple grounds, including res judicata. On December 12, 2000, while those Motions were pending, the Court granted Plaintiff's Motion to Substitute True Names for "Doe 1" and "Doe 2" in which Plaintiff added Defendants Fabrizio and The Honorable David A. Workman as parties to this action. Defendants Fabrizio and Workman, however, did not join in the California Defendants' Motion to Dismiss. In the Court's Opinion and Order issued on March 19, 2001, the Court granted the California Defendants' Motion to Dismiss and the Federal Defendant's Motion to Dismiss. Defendants Fabrizio and Workman then filed Motions to Dismiss for Lack of Personal Jurisdiction, which the Court granted in an Opinion and Order issued June 28, 2001.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1343(3), 1332(a)(1), and 1346(b).
PLAINTIFF'S MOTION CONCERNING JUDICIAL NOTICE
Plaintiff seeks permission to file in this action 348 pages of exhibits and an "Appendix of Foreign Authorities" previously filed in Case No. 398-36607, United States Bankruptcy Court for the District of Oregon. Plaintiff also asks the Court to take judicial notice of these documents and authorities, which Plaintiff submitted with his Motion for Leave to File Important Documentary Material of Judicial Notice (#154). Furthermore, Plaintiff requests the Court to take judicial notice of the "true facts" underlying Plaintiff's action and asks for a hearing regarding his Motion. A court may take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation omitted). See also Fed.R.Evid. 201. Nevertheless, a court may not take judicial notice of a fact that is "subject to reasonable dispute." Fed.R.Evid. 201(b).
The Court grants Plaintiff's Motion for Leave to File Important Documentary Material of Judicial Notice (#154) to the extent Plaintiff requests permission to file the 348 pages of exhibits previously filed in the Bankruptcy Court. The 348 pages of exhibits from the Bankruptcy Court are deemed filed in this Court. The Court takes judicial notice of the existence and content of the orders, pleadings, and documents that comprise the 348 pages of exhibits, but the Court does not take judicial notice of any facts subject to reasonable dispute asserted in such materials. See Fed.R.Evid. 201(d)("A court shall take judicial notice if requested by a party and supplied with the necessary information."). The Court will consider these materials for purposes of the pending Motions addressed in this Opinion and Order.
The Court, however, denies Plaintiff's Motion as moot with respect to his "Appendix of Foreign Authorities." Plaintiff's Appendix was previously submitted with Plaintiff's Notice of Corrected Request to Take Judicial Notice and Request for Judicial Hearing (#142), which the Court granted in part and denied in part in its Opinion and Order issued June 28, 2001. Plaintiff's Motion is also denied to the extent Plaintiff requests an oral hearing. Plaintiff is not entitled to be heard in person. See Allen v. City of Los Angeles, 92 F.3d 842, 849 (9th Cir. 1996) (opportunity to file brief satisfied requirements of Rule 201(e)), overruled on other grounds, Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir. 1997). See also American Stores Co. v. C.I.R., 170 F.3d 1267, 1271 (10th Cir.) (Rule 201(e) does not mandate an oral hearing, and an opportunity to file a legal brief is sufficient), cert. denied, 528 U.S. 875 (1999).
PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT
In the Court's Opinion and Order issued August 4, 2000, the Court denied Plaintiff's Motion for Relief from Judgments Obtained by Fraud on the Courts Pursuant to Fed.R.Civ.P. 60(b) (#44). Plaintiff now seeks to "reopen" his prior Motion and moves the Court to consider overturning prior judgments entered against him by California courts. According to Plaintiff, such judgments were obtained through fraud perpetrated on the California courts by adverse parties who lacked standing to sue Plaintiff. Moreover, Plaintiff contends such fraud took place in actions over which the California courts did not have subject matter jurisdiction.
Fed.R.Civ.P. 60(b)(3) permits a losing party to file an independent action for relief from judgment on the basis of "fraud . . ., misrepresentation, or other misconduct of an adverse party." In order to obtain relief from a final judgment on such grounds, the moving party must establish the conduct prevented him from fully and fairly presenting his case in the earlier action. De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir.), cert. denied, 121 S.Ct. 183 (2000). The moving party is not entitled to relitigate the previous action merely because he believes the judgment to be incorrect. Id. (citing In re M/V Peacock on Complaint of Edwards, 809 F.2d 1403, 1405 (9th Cir. 1987)).
Plaintiff's First Amended Complaint and the materials judicially noticed by the Court in the course of this action establish Plaintiff and/or his alter-ego corporations had full opportunity to fairly litigate the issue of fraud on the courts in the previous California actions. For instance, Plaintiff acknowledged in his Fifth Claim for Relief certain "true permits" were submitted in evidence in the California litigation to counter the false papers and fraudulent information that had allegedly been introduced by adverse parties. Plaintiff's First Amended Complaint and the documents judicially noticed by the Court also show Plaintiff and/or his alter-ego corporations had the opportunity in the earlier California actions to raise, as well as to fairly and fully litigate, the issue of the California courts' alleged lack of subject matter jurisdiction and of the adverse parties' alleged lack of standing to sue in the California litigation.
Plaintiff, therefore, has failed to state a claim on which relief from judgment can be granted pursuant to Fed.R.Civ.P. 60(b). Accordingly, Plaintiff's Motion to Reopen the Motion Pursuant to Fed.R.Civ.P. 60(b) for Relief from Judgments Obtained by Fraud on the Court and Without Subject Matter Jurisdiction, and Without Standing to Sue Plaintiff (#148) is denied.
PLAINTIFF'S MOTION RE: HANDWRITTEN PLEADING AND PROTECTIVE APPEAL
Plaintiff asks the Court to accept and to excuse the handwritten pleadings in which he requests rehearing and reconsideration of the Court's Opinion and Order issued on March 19, 2001. Defendants do not oppose the Court's acceptance of Plaintiff's handwritten pleadings. Plaintiff's Motion to accept and to excuse handwritten pleadings, therefore, is granted. Plaintiff also has filed a self-styled "Protective Notice of Appeal." No judgment has been entered in this action; therefore, Plaintiff's Protective Notice of Appeal is premature and of no effect. Accordingly, Plaintiff's Motion to Excuse Handwritten Pleading or Protective Notice of Appeal (#138) is granted in part and denied in part as premature.
PLAINTIFF'S REQUEST FOR INSTRUCTIONS ON PROCEDURAL MATTERS
Plaintiff has requested the Court to instruct him as to the procedures he should follow if his handwritten pleadings are not accepted. Because Plaintiff's Motion to accept and to excuse handwritten pleadings was granted, Plaintiff's Application and Motion for Instructions on Procedural Matters (#144) is moot.
PLAINTIFF'S MOTION FOR REHEARING/RECONSIDERATION
Plaintiff requests rehearing and reconsideration of the Court's Opinion and Order issued March 19, 2001. In support of his Motion, Plaintiff identified in a cursory manner 29 issues that allegedly justify the Court's reconsideration. These can be generally grouped into the following categories:
1) The California courts and California Coastal Commission (CCC) acted without jurisdiction when they enforced certain California land-permit restrictions;
2) The California trial and appellate courts denied Plaintiff and/or his alter-ego corporations a fair trial on the merits;
3) The California Defendants and Federal Defendants intentionally violated Plaintiff's rights;
4) Defendants violated the discharge of Plaintiff's obligations by the Bankruptcy Court and the Bankruptcy Court's injunction against further collection efforts when Defendants continued to enforce certain California land-use permits; and
5) The Court improperly decided Motions to Dismiss by the California Defendants and Federal Defendants in the Opinion and Order issued on March 19, 2001.
A Court's reconsideration of an opinion and/or order is warranted "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994) (citations omitted). See also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (1999).
Plaintiff has failed to produce any newly-discovered evidence bearing on his claims asserted in the First Amended Complaint. Plaintiff's 348 pages of exhibits and "Appendix of Foreign Authorities" that were previously filed in the Bankruptcy Court, which Plaintiff filed in this Court following the Court's Opinion and Order issued March 19, 2001, do not constitute new evidence that would justify reconsideration. The failure to file documents in support of an opposition memorandum does not turn documents that were untimely filed into newly-discovered evidence. See ACandS, 5 F.3d at 1263 (citations omitted). In any event, nothing in the documents from the Bankruptcy Court constitutes evidence that alters or sheds new light on the allegations in
Plaintiff's First Amended Complaint.
Plaintiff challenges the manner in which the Court granted the Motions to Dismiss by California Defendants and Federal Defendants in its March 19, Opinion and Order. Plaintiff, however, fails to show the Court committed clear error or to establish the Court's decision was manifestly unjust. Plaintiff also fails to point to an intervening change in controlling law concerning the application of claim preclusion or res judicata. Plaintiff, however, has cited and discussed Lee v. City of Los Angeles, 250 F.3d at 679-81, as follows:
The Lee decision is significant for its specific endorsement of the Supreme Court's Leatherman v. Tarrant County, 507 U.S. 163 [(1993),] holding that the 'enhanced pleading' requirement[s] are contrary to FRCP 8(a)(2), where a 'mere' citizen asserts he has been deprived of constitutional, civil or property rights by some person who drapes himself with the flag of the United States and claims some fictitious 'enhanced' status, superior to equal citizenship rights.
The Lee decision does not support Plaintiff's Motion for Reconsideration. In Lee, the Ninth Circuit did not address application of the res judicata doctrine that formed the basis of this Court's March 19, Opinion and Order. In turn, this Court did not consider the question whether Plaintiff's civil rights allegations were sufficient to withstand a motion to dismiss, which was an important issue addressed in Lee. The Lee decision, therefore, is distinguishable and does not provide a basis for reconsideration of this Court's March 19, Opinion and Order. Accordingly, Plaintiff's Motion for Rehearing/Reconsideration of Opinion and Order of March 19, 2001, is denied.
CONCLUSION
Based on the foregoing, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Leave to File Important Documentary Material of Judicial Notice (#154); DENIES Plaintiff's Motion to Reopen Motion Pursuant to Fed.R.Civ.P. 60(b)for Relief from Judgments (#148); GRANTS in part and DENIES in part as premature Plaintiff's Motion to Excuse Handwritten Pleading or Protective Notice of Appeal (#138); DENIES as moot Plaintiff's Application and Motion for Instructions on Procedural Matters (#144); and DENIES Plaintiff's Motion for Rehearing/Reconsideration of Opinion and Order of March 19, 2001 (#139). In light of the Court's Opinion and Orders issued on August 4, 2000; March 19, 2001; June 28, 2001; and this date, all claims asserted by Plaintiff have been resolved. This action, therefore, is DISMISSED with prejudice.
IT IS SO ORDERED.