TOM JENSEN v. TIMOTHY THOMAS (2025)

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT AND MOTION FOR RECONSIDERATION

Plaintiff Tom Jensen, who is proceeding without an attorney, has filed a Federal Rule of Civil Procedure 59(e) motion to alter or amend the Court's judgment, entered on August 15, 2024, in favor of Defendants Jannett Jackson, Atheria Smith, Mark Johnson, Bill Withrow, Linda Handy, Nicky Gonzalez Yuen, Cynthia Napoli-Abella Reiss, Dyana Marie Delfin Polk, Julina Bonilla, Royl Roberts, and Pamela Price (collectively, “Defendants”). (Dkt. Nos. 119, 121.)¹ Jensen has also filed a motion for reconsideration under Local Rule 7-9(b). (Dkt. No. 123.) Both motions are denied. This ruling assumes the reader is familiar with the facts, applicable law, and the arguments made by the parties.

Motion to alter or amend judgment. Jensen moves to alter or amend the August 15, 2024 judgment pursuant to Rule 59(e). Reconsideration under Rule 59(e) is only appropriate in limited circumstances: “(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). “Reconsideration should be used conservatively, because it is an ‘extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.’ ” Bryan v. Wal-Mart Stores, Inc., No. C 08-05221 SI, 2013 WL 3246091, at *3 (N.D. Cal. June 26, 2013) (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)).

Jensen fails to satisfy this high bar. He points to no new facts or law that would warrant reconsideration of the Orders as to Defendants on the motions to dismiss and the motion for leave to file a supplemental complaint. See id.

Contrary to Jensen's suggestion, grants of requests for judicial notice are not “mandatory” (e.g., Dkt. No. 119 at 17),² but are instead “a matter of judicial discretion.” See Errington v. Time Warner Cable Inc., No. 215CV02196, 2016 WL 2930696, at *2 (C.D. Cal. May 18, 2016) (citing United States v. Nat. Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1994)). Nor does Federal Rule of Evidence 201 permit courts to take judicial notice of the truth of the contents of a document. See Hadley v. Kellogg Sales Co., 273 F. Supp. 3d 1052, 1061 (N.D. Cal. 2017). Moreover, courts routinely decline to take judicial notice of materials on which they do not rely and consideration of which would not change the outcome. See, e.g., D & D Greek Rest., Inc. v. Great Greek Franchising, LLC, No. CV 20-9770, 2022 WL 4596548, at *1 (C.D. Cal. Aug. 26, 2022); Hong v. Read, No. 8:19-CV-00086, 2020 WL 4341726, at *1 n.2 (C.D. Cal. Mar. 16, 2020), report and recommendation adopted, 2020 WL 4342539 (C.D. Cal. Apr. 3, 2020). Such was the case here.

Jensen's Rule 59(e) motion also challenges the dismissal of the § 1983 claims against Defendant Edwin Prather. However, Jensen cannot bring such a motion under Rule 59(e) because no final judgment or appealable interlocutory order has been issued as to Prather. See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 466–67 (9th Cir. 1989).³ Even if the motion were construed as one seeking reconsideration of an interlocutory order under Local Rule 7-9(b), Jensen identifies no new facts or law justifying reconsideration.⁴ See Civ. L.R. 7-9(b); Food & Water Watch, Inc. v. EPA, No. 17-CV-02162-EMC, 2021 WL 121186, at *2 (N.D. Cal. Jan. 13, 2021).

Accordingly, the motion to alter or amend judgment is denied.

Motion for reconsideration. Jensen additionally moves for reconsideration of a number of the Court's prior orders pursuant to Local Rule 7-9(b). To the extent Jensen seeks reconsideration of the discovery schedule set at the initial Case Management Conference on September 4, 2024 (Dkt. No. 120), the deadlines are reasonable in light of the nature of the case.⁵ Jensen states that he needs more time for discovery due to the labor-intensive nature of his appeal from the entry of judgment concerning Defendants, in light of his age and health circumstances. However, at Jensen's request, the Ninth Circuit stayed his appeal pending this Court's order on his motion to alter or amend judgment, prior to any briefs or excerpts of records being filed. (Jensen v. Thomas et al., No. 24-5070, Dkt. Nos. 3, 4 (9th Cir.).) Accordingly, it is not clear whether Jensen still has good cause to seek the extension and whether he has been diligently pursuing discovery concerning the remaining Defendants Prather and Timothy Thomas in the intervening period. His motion is therefore denied without prejudice to him seeking to meet and confer with counsel for Defendants Prather and Thomas about an extension and, if a stipulation cannot be reached, renewing his motion to modify the schedule with additional information about good cause and diligence.

The motion is also denied in all other respects. Jensen relies on no new facts or legal authority that would warrant reconsideration of “the Judgment, the Order granting Price's and Peralta supervisor and board member defendants' Motions to Dismiss, and the Order denying in substantial part Plaintiff[']s Motion to Supplement[ ] his Complaint,” as well as the Order on the motion to strike Defendant Thomas's answer (Dkt. No. 123-1 at 11). See Civ. L.R. 7-9(b); Food & Water Watch, 2021 WL 121186, at *2.

Finally, Jensen's allegations of bias do not support reconsideration. While Jensen has not formally moved to disqualify the undersigned from this action, he identifies no valid basis warranting disqualification. See Mendel v. Chao, No. 19-CV-03244-JST, 2019 WL 13248299, at *1–2 (N.D. Cal. Oct. 25, 2019). The undersigned does not have a personal friendship with Prather, and common membership in an affinity bar association group is not a sufficient ground for establishing bias or impartiality. Nor does the undersigned's prior recusal in another unrelated case require disqualification in this case.

* * *

For the foregoing reasons, the motions are DENIED.

The Ninth Circuit has construed Jensen's appeal as one challenging the August 15, 2024 judgment. (Dkt. No. 126.) Because the Order on the motion for leave to file a supplemental complaint as to Defendants Prather and Thomas does not appear at issue in the appeal, nor has Jensen sought to certify these portions of the Order pursuant to 28 U.S.C. § 1292(b), Prather and Thomas are ORDERED to respond to the Supplemental Complaint within 21 days of this Order.

IT IS SO ORDERED.

FOOTNOTES

1.   The motions filed at Dkt. Nos. 119 and 121 are duplicates.

2.   Citations to page numbers refer to the ECF pagination.

3.   The same result follows even if Jensen had moved to seek relief from a final judgment or order under Rule 60(b). See Roshan v. Lawrence, No. 21-CV-01235-JST, 2023 WL 7440206, at *2 (N.D. Cal. Nov. 9, 2023) (“Interlocutory orders and judgments—including those that dismiss some, but not all, claims in a complaint—are not within the provisions of [Rule] 60(b).” (cleaned up)).

4.   The Court “retains jurisdiction over an interlocutory order—and thus may reconsider, rescind, or modify such an order—until a court of appeals grants a party permission to appeal.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001).

5.   The factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), are inapposite, as they apply to a criminal defendant's Sixth Amendment speedy trial claim. See United States v. Myers, 930 F.3d 1113, 1118 (9th Cir. 2019).

RITA F. LIN United States District Judge