Cotterill v. City and County of San Francisco

[8] 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA [11] 12 CHERYL COTTERILL, Case No. 08-cv-02295-JSW 13 Plaintiffs, ORDER DENYING MOITON TO 14 v. VACATE JUDGMENT 15 CITY AND COUNTY OF SAN Re: Dkt. No. 394 FRANCISCO, et al., [16] Defendants. [17] 18 Now before the Court is a motion to vacate the judgment filed by Gregory M. Haynes 19 (“Haynes”), attorney for the nominative plaintiff. Ten years after entry of judgment and eight 20 years after the judgment and award was affirmed on appeal, Haynes seeks to vacate the judgment. 21 For the reasons stated herein, the motion is DENIED. 22 BACKGROUND 23 The factual background is familiar to the parties. Haynes represented Cheryl Cotterill 24 (“Plaintiff”) in the underlying lawsuit for claims of civil rights violations by The Regents of the 25 University of California (“Regents”), the City and County of San Francisco (the “City”), and 26 multiple individuals who were employees of these defendant entities. After dismissal, both the 27 Regents and the City Defendants filed motions for attorneys’ fees and costs which were referred to 1 Report as well as objections and subsequent filings, the undersigned adopted the Report and 2 adopted it in every respect. The Court found that maintaining the lawsuit after the depositions of 3 key witnesses was reckless as a matter of law and that Plaintiff’s counsel had, throughout the 4 litigation, unreasonably and vexatiously multiplied the proceedings in violation of 28 U.S.C. § 5 1927. On this basis, the Court granted the Regents’ and the City’s motions for attorneys’ fees and 6 costs, awarding $165,578.37 to the Regents and $196,967.24 to the City. (Dkt. No. 293, Order 7 dated May 13, 2010.) The Court explicitly did not tax costs or fees to the Plaintiff, but instead to 8 her counsel Haynes for unreasonably and vexatiously multiplying the proceedings. 9 Haynes appealed the Order and the Ninth Circuit affirmed the dismissal and remanded to 10 the undersigned for the sole purpose of making a discretionary determination whether Haynes 11 could afford to pay the sanction of attorneys’ fees and costs pursuant to 28 U.S.C. § 1927 . The 12 Court held a hearing to review the amount and reviewed all submissions. The Court determined 13 that the original amount suggested in the Report and the Court’s order adopting the Report 14 remained the appropriate award. (Dkt. No. 326, Order dated June 18, 2013.) Haynes appealed the 15 judgment of the Court, including the award of sanctions. For failing to prosecute his appeal after 16 multiple delays, the Ninth Circuit dismissed counsel’s appeal with prejudice. (Dkt. No. 357.) 17 On March 15, 2022, the Regents filed an application to renew the original judgment in this 18 action dated June 18, 2013, noting the lapse of nearly ten years and the additional interest which 19 had accrued. (Dkt. No. 361.) On May 19, 2022, the Clerk of the Court entered the writs of 20 execution and on June 17, 2022, issued the notice of renewal of judgment for another ten-year 21 term. (Dkt. Nos. 364, 365, 366, 375.) 22 On July 18, 2022, Haynes filed a motion to set aside or vacate the judgment and on August 23 8, 2022, filed a motion to disqualify the undersigned. On January 4, 2023, the Court denied 24 Haynes’ motions to set aside or vacate the judgment as well as the motion to disqualify the 25 undersigned. On August 17, 2023, Haynes again moved to vacate the judgment again on the basis 26 that the undersigned’s son was employed at the City Attorney’s Office. The Court shall address 27 other relevant facts in the remainder of its order. 1 ANALYSIS 2 A. Motion to Vacate Judgment is Denied as Untimely. 3 A motion for relief from judgment under Federal Rule of Civil Procedure Rule 60(b) needs 4 to be filed “within a reasonable time.” See Fed. R. Civ. P. 60(c)(1). For several provisions of 5 Rule 60(b), a motion must be made “no more than a year after entry of the judgment order.” Id. 6 Determining whether to grant relief under Rule 60 requires the Court to adjudicate on a case-by7 case basis whether the motion has been filed within a reasonable time. See, e.g., Ashford v. 8 Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (holding that the court should take “into 9 consideration the interest of finality, the reason for delay, the practical ability of the litigant to 10 learn earlier of the grounds relied upon, and prejudice to other parties.”) 11 Plaintiff filed his motion ten years after entry of judgment and award of sanctions and eight 12 years after the order was affirmed on appeal. The bases for his motion were known to Haynes far 13 in advance of his filing the motion and a significant portion of the legal arguments have been 14 addressed in the course of the litigation already. The renewal of judgment by the Regents does not 15 restart the time period in which counsel can file a Rule 60 motion. Accordingly, the Court 16 concludes this motion has been filed far too late to qualify as “within a reasonable time.” The 17 motion can be denied on that basis alone; however, the Court shall address the merits of the 18 motion. 19 B. Motion is Denied on the Merits. 20 Under Rule 60(b), a court may relieve a party from a final judgment for: 21 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have 22 been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), 23 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or 24 discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) 25 any other reason that justifies relief. 26 The six provisions under Rule 60(b) are “mutually exclusive” thereby allowing for vacatur 27 of a judgment on one of the enumerated bases but not additionally under the catch-all provision of [1] 597 U.S. 380 , 393 (1983). Rule 60(d)(3) allows the court to “set aside a judgment for fraud on the 2 court.” 3 Haynes again brings his motion to vacate the judgment on the basis that the Court failed to 4 disclose that, during the course of the underlying litigation, the undersigned judge’s son worked in 5 the City Attorney’s Office. On this basis, Haynes moves to vacate the judgment pursuant to Rule 6 60(b)(4), (b)(6) and (d)(3). Rule 60(b)(4) allows the court to vacate a “void” judgment where 7 there was a substantial or jurisdictional defect which rendered the original judgment invalid and 8 legally ineffective. See, e.g., United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 , 271 9 (2010) (holding that “Rule 60(b)(4) applies only in the rare instance were a judgment is premised 10 either on a certain type of jurisdictional error or on a violation of due process that deprives a party 11 of notice or the opportunity to be heard.”) Under Rule 60(b)(6), the Court may grant relief “in 12 extraordinary circumstances” and only when such vacatur is necessary to accomplish justice. See, 13 e.g., Ackermann v. United States, 340 U.S. 193, 199 (1950). Lastly, under Rule 60(d)(3), a court 14 may vacate a judgment where fraud on the court involves “an unconscionable plan or scheme 15 which is designed to improperly influence the court in its decision.” Pumphrey v. K.W. Thompson 16 Tool Co.¸62 F.3d 1128, 1131 (9th Cir. 1995). The fraud must be established by clear and 17 convincing evidence and must go “to the central issue in the case” and “affect the outcome of the 18 case.” England v. Doyle, 281 F.2d 304, 310 (9th Cir. 1960); United States v. Estate of Stonehill, [19] 660 F.3d 415, 452, 448 (9th Cir. 2011). 20 Here, the Court finds that Haynes’ motion to vacate the judgment is not based on any 21 extraordinary circumstances which render the judgment void, either by jurisdictional error or by 22 fraud on the court. Rather, the fact of the judge’s son’s employment with the City Attorney’s 23 Office presented no conflict or cause for questioning the judge’s impartiality. An opinion letter 24 dated November 15, 2013, from the Committee on Codes of Conduct of the Judicial Conference of 25 the United States found that, based on all of the circumstances, the mere fact that the son worked 26 for the City Attorney’s Office did not require recusal and the evidence did “not lead the 27 Committee to conclude that [Judge White’s] impartiality might reasonably be questioned.” (Dkt. 1 pending before him and was not biased in any way by his son’s employment status. There is no 2 || colorable claim that the fact of his son’s employment renders the judgment in this matter void. 3 Haynes has made this claim unsuccessfully before. Again, absent any other reason to vacate the 4 || judgment, the motion is DENIED. [5] 6 IT IS SO ORDERED. ay 7 || Dated: October 3, 2023 C | of ABFERY)Y/S./ WHYTE 9 / United States DyArict Judge [11] a 12 [16] it Z 18