Opinion
3:10-cv-01285-AC
12-10-2020
LOREDANA RANZA, Plaintiff, v. NIKE, INC., an Oregon corporation, NIKE EUROPEAN OPERATIONS NETHERLANDS, B.V., a foreign corporation, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Introduction
Plaintiff Loredana Ranza (“Ranza”) filed a motion for relief for judgment in this closed case, and the question for the court's decision is whether her motion was filed timely. The court finds Ranza did not seek relief from judgment within a “reasonable time, ” as required under Rule 60 of the Federal Rules of Civil Procedure (“Rule 60”). However, the time limits set forth in Rule 60(c) do not apply to relief sought under Rule 60(d). Accordingly, Ranza's motion for relief from judgment should be limited to relief sought pursuant to Rule 60(d)(3).
Background
Defendant Nike European Operations Netherlands, B.V., a foreign corporation doing business in Europe (“NEON”), terminated Ranza's employment on October 1, 2008. (Compl. ECF No. 1 ¶¶ 4, 7.) NEON was a wholly owned subsidiary of defendant Nike, an Oregon corporation (“Nike”). (Compl. ¶ 4.) Ranza was a citizen of the United States, a resident of the Netherlands, a female, and forty-five years old at the time of her termination. (Compl. ¶¶ 3, 8, 14.)
As required under Dutch law, NEON sought approval from the Court of Hilversum to terminate Ranza. Ranza v. Nike, 793 F.3d 1059, 1066 (9th Cir. 2015), cert denied, 577 U.S. 1104 (2016). After a hearing, at which Ranza was represented by legal counsel, the court found Ranza's proposed termination was “‘neutral,' i.e., that no party was at fault, ” granted NEON permission to terminate Ranza's employment, and awarded Ranza approximately $205,000 in severance pay. Id. The court declined Ranza's request to determine if she had a valid claim of discrimination, stating that “such a claim should be brought before the Dutch Equal Treatment Commission (ETC) or a court in the United States.” Id.
Ranza then pursued claims for age and sex discrimination with the ETC. The Ninth Circuit summarized the authority of the ETC and its resolution of Ranza's discrimination claims in the following manner:
According to an English translation of an ETC publication, the ETC is a “special ‘enforcement institution [ ]'” established by the Dutch government to help implement the country's equal treatment laws. It is separate from the judiciary but shares some features in common with a judicial tribunal: its nine commissioners have salary protections, decisional independence and insulation from firing by the government. It “provides easy access to an independent and expert judgement in matters of alleged unequal treatment and/or discrimination, both for individuals and for private and public organisations and institutions.” Its proceedings are “less formal than a court procedure, ” but litigants are permitted to submit evidence, present witnesses and argue their case at a hearing. When investigating a complaint, the ETC can make direct inquiries of the parties and call on independent experts to evaluate the facts.
The ETC does not provide direct relief, however; its power is in its ability to persuade the parties or a court of law to act in accordance with its conclusions and recommendations. It determines whether unlawful discrimination has occurred and publishes reasoned opinions applying the law to the facts of a case. It can also make recommendations to prevent future discrimination. But it has no authority to enforce its judgments or recommendations. After the Commission issues a judgment finding discrimination, it follows up with the parties to determine whether the defendant has taken remedial actions and to encourage compliance. Although the ETC cannot impose penalties or other sanctions on a defendant who fails to remedy discrimination, a complainant may try to persuade a court of law to enforce an ETC judgment, either through money damages or injunctive relief. In such a case, the Commission's determination that discrimination has occurred “can be of great value, ” according to the Commission, in part because the ETC takes considerable effort in drafting its judgments to make them persuasive to the parties and the courts. Additionally, the ETC itself may bring legal action in Dutch courts to enforce its judgments.
Here, the ETC held a hearing on Ranza's claims of discrimination in June 2009. Ranza and NEON representatives were present at the hearing (along with English translators) and were represented by counsel. At the conclusion of the hearing, the ETC initiated an investigation and requested further information from the parties. The ETC also asked its independent job evaluation expert to investigate Ranza's claims and provided the expert's findings to the parties to give them an opportunity to respond. After concluding its investigation, the ETC issued a thorough opinion in June 2010, finding NEON “ha[d] not discriminated [against] L. Ranza during her work on the basis of sex or age, nor ha[d] [it] acted in violation of the victimization prohibition [under Dutch law].” The opinion addressed each of Ranza's allegations, including her claims that NEON discriminated against her when it promoted a younger, less qualified male instead of her; that NEON paid Ranza less than her more junior male coworkers; and that NEON fired her because of her sex, age and in retaliation for her complaints of discrimination. The opinion presented the facts, law and positions of the parties on each of Ranza's claims before concluding they lacked merit.Id. at 1066-67.
The Ninth Circuit noted in a footnote that “Dutch law prohibits discrimination on the basis of sex and age, among other protected statuses.” Id. at 106 n.1.
Having received a negative ruling from the ETC on her discrimination claims, Ranza decided to file this lawsuit rather than continue to pursue her claims in the Netherlands. Accordingly, Ranza filed her complaint on October 18, 2010, alleging NEON and Nike discriminated against her on based on her sex and age in violation of federal statutes. (“Complaint”). (Compl.) On March 3, 2011, Defendants moved to dismiss the Complaint on five grounds: (1) the court lacked personal jurisdiction over NEON; (2) Nike lacked the control over NEON sufficient to subject NEON to liability under relevant federal statutes; (3) Ranza did not timely exhaust her administrative remedies; (4) the proper forum is the Netherlands; and (5) Ranza has not met the applicable pleading standard.
In a Findings and Recommendation filed January 4, 2013 (the “F&R”), this court found: “it lacks personal jurisdiction over NEON, there are no genuine issues of fact regarding whether Nike controls NEON sufficient to hold NEON liable under Title VII and the ADEA, Ranza exhausted her administrative remedies with respect to both NEON and Nike, and Oregon is an improper venue for Ranza's claims.” (Ranza v. Nike, Inc., CIV No. 3:10-cv-01285-AC, Findings and Recommendation dated January 4, 2013, ECF No. 130 (“F&R”), at 2.) As a result, this court recommended the lawsuit be dismissed. (F&R at 83.)
In reaching its recommendation to dismiss Ranza's lawsuit, this court addressed her argument that, based on Nike's degree of control over NEON, Nike effectively was her employer and, consequently, liable for violations of Title VII and the ADEA as a substantive, rather than jurisdictional, question. (F&R at 52-53.) The court explained that “to assert liability against a domestic parent corporation, a plaintiff must show that it controlled the foreign subsidiary, ” engaged in a detailed and extensive analysis of Nike's relationship with NEON, and found Ranza failed to present sufficient evidence to rebut the strong presumption that Nike, as the parent company of NEON, was not liable for employment violations of its subsidiary for the purposes of Title VII or the ADEA. (F&R at 53-67.)
Judge Anna Brown adopted the F&R in an Amended Order dated March 7, 2013 (“Order”), relying solely on this court's finding it lacked personal jurisdiction over NEON and on Ranza's failure to state a claim against Nike for violation of Title VII and the ADEA. Ranza v. Nike, Inc., No. 3:10-CV-01285-AC, 2013 WL 869522, at *2 (D. Or. March 7, 2013)(“Because this court concludes it lacks personal jurisdiction as to NEON and that Plaintiff cannot under any set of facts state a claim against Nike for violation of Title VII or the ADEA, it is unnecessary for the Court to consider the Magistrate Judge's alternative recommendations regarding exhaustion of administrative remedies or forum non conveniens.”) Judge Brown issued a Judgment dismissing this action with prejudice on March 8, 2013 (“Judgment”). (Judgment, ECF No. 143.)
Ranza appealed the dismissal to the Ninth Circuit Court of Appeals. In an opinion dated July 16, 2015, the Ninth Circuit affirmed the dismissal based on lack of personal jurisdiction over NEON and on the existence of a more convenient forum for litigating Ranza's claims against Nike. Ranza, 793 F.3d at 1079. The Ninth Circuit found:
The district court properly dismissed Ranz's claims against NEON for lack of general personal jurisdiction. NEON is a Dutch company that mostly operates outside the United States. Its contacts with Oregon are not “so continuous and systematic as to render [it] essentially at home” there. Although we conclude a plaintiff may impute a local entity's contacts to its foreign affiliate if it demonstrates an alter ego relationship between the entities, Ranza has not made that showing. Nike, a corporation that is based in Oregon, is heavily involved in NEON's micromanagement, but it is not so enmeshed in NEON's “routine matters of day to-day operation” that the two companies should be treated as a single enterprise for the purpose of jurisdiction.
We further hold the district court properly dismissed Ranza's claims against Nike, albeit for a different reason than the district court cited. Under the circumstances, the Netherlands provided an adequate and more convenient alternative forum in which to litigate Ranza's claims, thus justifying Nike's dismissal under the forum non conveniens doctrine.Id. (internal citations omitted).
The Ninth Circuit rejected Ranza's argument the “Netherlands is an inadequate forum under the second prong because it cannot provide her with a satisfactory remedy” based, in part, on Ranza's choice “to litigate her discrimination claims before the ETC, which thoroughly reviewed those claims.” Id. The Ninth Circuit noted a foreign forum need not offer the same remedy as the United States, but must merely provide “some” remedy, and a forum will typically ‘“be inadequate only where the remedy provided is so clearly inadequate or unsatisfactory, that it is no remedy at all.'” Id. (quoting Carijcmo v. Occidental Petroleum Corp., 643 F.3d 1216, 1266, (9th Cir. 2011)). It then explained Ranza took advantage of the opportunity to litigate her claims for violation of Dutch equal protections laws before the ETC, have the ETC investigate her claims and employ an expert to evaluate NEON's employment practices, and present evidence and witnesses at a hearing. Ranza, 793 F.3d at 1078. While acknowledging the ETC did not have the authority to award damages or enforce its judgments based on findings of discrimination, the Ninth Circuit reasoned the ETC:
publishes its findings, coordinates with both governmental and non-governmental bodies and “actively follow[s] up” with employers to ensure compliance with its findings and to remedy any discrimination. The ETC publication Ranza provided states that a prevailing claimant can ask a Dutch court to enforce an ETC judgment, through damages and injunctive relief, and the Commission may pursue claims on behalf of claimants. Had Ranza prevailed before the ETC, these remedies would have been available to her. Even if these remedies proved less generous than those available to a prevailing plaintiff in a Title VII and ADEA action in the United States, they nevertheless represent “some remedy” and are therefore adequate under the forum non conveniens inquiry.Id. at 1077-78.
After the United States Supreme Court denied her petition for certiorari on January 19, 2016, Ranza initiated proceedings against NEON, “also called Nike, ” in a Dutch court on July 16, 2016 (“Dutch Action”). (Pl.s' Mot. to Take Judicial Notice of Adjudicative Facts Pursuant to FED. R. EVID. 201, Ecf No. 172 (“Request”), at 97, 99.) In an opinion dated March 21, 2018, Judge A. van Dijk rejected Ranza's discrimination claims because she had not filed them within the applicable six-month statute of limitations. (Request at 99.) Judge van Dijk found the filing of the lawsuit in this court “interrupted, ” or tolled, the statute of limitations and the limitations period resumed when the United States Supreme Court denied Ranza's petition for certiorari on January 19, 2016. (Request at 99.) Because Ranza did not file the Dutch action until July 21, 2016, more than six months after this lawsuit ultimately expired, her claims were not timely. (Request at 99.) The Court of Appeal of Anrhem-Leeuwarden agreed with Judge van Dijk's ruling in an Opinion dated September 3, 2019. (Request at 102-08.)
Ranza asks the court to take “judicial notice of events subsequent to the dismissal of her Title VII case” against Nike and NEON. (Request at 6.) Nike does not object to the court taking judicial notice of the opinions of the Dutch courts found at 97-108 of Ranza's motion for judicial notice. (Def. Nike Inc.'s Resp. to Pl.'s Mot. for Relief from Judgment and to Take Judicial Notice, ECF No. 183, at 6.) Given the lack of objections and the existence of clear case law allowing courts to take judicial notice of complaints, briefs, as well as of opinions filed in another case to determine what issues were before that court and were actually litigated, the court grants Ranza's motion for judicial notice of the Dutch court opinions. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”).
On March 20, 2020, Ranza, now appearing pro se, filed a “Motion for Relief from Final Judgment Under FED. R. CIV. PROC. 60(b)(6), 60(d)(3), and/or the Court's Inherent Equitable Powers” (“Motion”), and accompanying “Motion to Take Judicial Notice of Adjudicative Facts Pursuant to FED. R. EVID. 201” (“Request”), asking the court to set aside the Judgment, reopen this lawsuit, and allow her to proceed with her claims against Nike. Ranza claims Neon's “refus[al] to cooperate in the Dutch forum by objecting to the court's jurisdiction and raising multiple defenses to her suit. .. left Plaintiff in the extraordinary circumstance of having no forum capable of providing her with a remedy to hear her claims.” (Pl.'s Rule 60 Mot. for Relief from Final Judgment, ECF No. 173 (“Mot.”) at 6.) She asserts “the lack of any forum able to provide her with a remedy for violations of her civil rights as an American citizen is an extraordinary circumstance” establishing she filed the Motion in a timely manner under Rule 60 of the Federal Rules of Civil Procedure (“Rule 60”). In a minute order dated March 30, 2020, the court allowed “the recent filings (Request for Judicial Notice #[ 172] and Motion for Relief from Final Judgment #[173]) at this time only for the purpose of determining whether the motion for relief from judgment meets Rule 60's timeliness requirement.” (Order dated March 30, 2020, ECF No. 174.) Consequently, while the parties addressed the merits of the Motion and Request to some degree in their opposition and replies, the court at this time limits its consideration to the question of timeliness.
Legal Standard
Rule 60(b) allows a district court to relieve a party from a final judgment or order for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud ... by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied ...; or (6) any other reason that justifies relief.” FED. R. CIV. P. 60(b) (2019). Rule 60(d)(3) similarly allows the court to “set aside a judgment for fraud on the court.” FED. R. Civ. P. 60(d)(3) (2019). Relief under Rule 60 “should be granted sparingly to avoid manifest injustice and only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” Navajo Nation v. Dep't of the Interior, 876 F.3d 1144, 1173 (9th Cir. 2017) (internal quotation marks omitted). The party making the Rule 60 motion bears the burden of proof. See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992).
Discussion
I. Rule 60(b)
A motion under Rule 60(b) must be made within a reasonable time and, if seeking relief under Rule 60(b)(1)-(3), “no more than a year after the entry of the judgment or order or the date of the proceeding.” FED. R. CIV. P. 60(C) (2019). Here, Ranza seeks to set aside the Order and Judgment based on Rule 60(b)(6). Consequently, the one-year limitation in inapplicable and the court must determine if Ranza's Rule 60(b) motion was filed within a “reasonable time.”
“What constitutes reasonable time depends upon the facts of each case, taking into consideration the interest in finality, the reason for the delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties.” Lemoge v. United States, 587 F.3d 1188, 1196 97 (9th Cir. 2009) (quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir, 1981) (per curiam)). In Ashford, the district court denied the plaintiffs Rule 60(b) motion seeking to set aside an order denying leave to file a complaint in forma pauperis which was filed thirty days after the order in question became final. Ashford, 675 F.3d at 1054. The Ninth Circuit affirmed the denial because the Rule 60(b) motion was not timely filed, giving “great weight” to the interest in finality factor and noting the time for appeal had passed by the time the motion had been filed. Ashford, 675 F.3d at 1055.
Ranza did not include Nike as a defendant in the Dutch Action and the record reveals no reason that explains this omission. If Ranze concluded she had no cause of action against Nike in the Netherlands, then clearly she knew of this futility by the time she filed the Dutch Action in July 2016. Alternatively, if Ranza omitted Nike because she did not intend to pursue Nike in the Netherlands, then the Dutch court's rulings on her claims against NEON were irrelevant to the remedies available to her with respect to Nike in the Dutch Action, and that circumstance does not justify her delay in filing the Motion. Under either theory, Ranza was aware she either was not able or did not intend to pursue Nike in Dutch court by July 2016, more than three and one-half years before she filed the Motion. Nike therefore had the right to rely on Ranza's actions in believing the Order and Judgment was final with respect to it as of July 2016. Ranza's delay in filing the Motion under this scenario clearly was unreasonable.
Even assuming Ranza could not have known she had no remedy against Nike in the Dutch Action until September 3, 2019, when the Dutch appellate court upheld the dismissal of her claims against NEON, Ranza still did not file the Motion within a reasonable period of time. She argues the Dutch Action was not final until December 3, 2019, when the time for her to file an appeal to the Dutch Supreme Court expired. She represents she approached two lawyers for assistance in appealing the September 3, 2019 opinion to the Dutch Supreme Court and did not know until late November 2019 that neither lawyer would not take her case. Nonetheless, during this three-month period, Ranza had time to consider, and should have been considering, the effect of a decision not to file an appeal in the Dutch Action on her claims against Nike in this action. Accordingly, Ranza had six months, not three, to consider her next steps with regard to both the Dutch Action and this action, and she should have filed the Motion shortly after becoming aware she would not be filing a second appeal in the Dutch Action. Consequently, the three-month delay after the Dutch Action allegedly became final and the date Ranza filed the Motion was unreasonable.
Additionally, the Ninth Circuit implied, if not explicitly stated, that Ranza enjoyed an alternative adequate remedy in the Netherlands through her claim before the ETC. That she was not successful in that claim did not alter the conclusion the ETC offered her an adequate remedy. Ranza, 793 F.3d at 1078 (“Had Ranza prevailed before the ETC, these remedies would have been available to her. Even if these remedies proved less generous than those available to a plaintiff in a Title VII and ADEA action in the United States, they nevertheless represent ‘some remedy' and are therefore adequate under the forum non conveniens inquiry.”) Consequently, Nike was entitled to rely on the Ninth Circuit opinion as a final resolution of Ranza's claims against it. Allowing Ranza to reinstate those claims now clearly would be prejudicial to Nike and, essentially, would retroactively deprive Nike of the ability to rely on the Ninth Circuit ruling as a final judgment.
Moreover, Ranza's failure to timely file the Dutch Action prevented her from taking full advantage of the remedies available to her and obtaining the remedy she sought there. She should not be awarded for her dilatory actions in that case by allowing her the extraordinary relief she seeks here after her untimely attempt in the Dutch court. The court finds Ranza did not file the Motion within a reasonable time and, therefore, is not entitled to pursue her request to set aside the Judgment under Rule 60(b)(6).
II. Rule 60(d)
Rule 60(d) specifically provides: “This rule does not limit a court's power to . . . set aside a judgment for fraud on the court.” FED. R. CIV. P. 60(d)(3) (2019). The Ninth Circuit and courts in this district have interpreted this language to exempt motions under Rule 60(d) from the limitations found in Rule 60(c). See In re Pryor, No. 2:09-AP-02322-BR, 2016 WL 400119, at *3 (B.A.P. 9th Cir. Jan. 29, 2016) (“motions to set aside a judgment for ‘fraud on the court' under Civil Rule 60(d)(3) are not subject to time limits”); United States v. Estate of Stonehill, 660 F.3d 415, 44344 (9th Cir. 2011) (“Rule 60(b), which governs relief from a judgment or order, provides no time limit on courts' power to set aside judgments based on a finding of fraud on the court.”); In re Von Borstel, No. ADV 03-3523, 2011 WL 477817, at *4 (Bankr. D. Or. Feb. 3, 2011) (“a motion under Rule 60(d)(3) to set aside a judgment for fraud on the court is not subject to the same ‘reasonable time' limit.”) Consequently, Ranza timely filed the Motion to the extent she relies on Rule 60(d)(3) and the court should consider the merits of the Motion only with respect to Rule 60(d)(3).
Conclusion
Ranza's motion (173) for relief from final judgment under Rule 60(b)(6) should be denied as untimely, and Ranza should be allowed to proceed with her motion only under Rule 60(d)(3).
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within seventeen (17) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.