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3 UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 Case No: 21-cv-06862-SBA 7 KEVIN WOODRUFF, et al., ORDER ON MOTION FOR 8 Plaintiffs, RECONSIDERATION

9 v.

10 DE FACTO BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, et al., 11 Defendants. 12

13 Plaintiffs Kevin Woodruff, Tanya Stutson, and Wanag Tahatan-Bey (“Plaintiffs”), 14 proceeding pro se, initiated this action by filing a document titled “Trial by Affidavit.” 15 Dkt. 1. The Trial by Affidavit set forth no discernable factual background or individual 16 claims for relief; rather, it presented “points” that, according to Plaintiffs, had to be “re- 17 butted” or “stand as truth.” Id. at 4. Defendant Barrett Daffin Frappier Treder & Weiss, 18 LLP, erroneously sued as “De Facto Barrett Daffin Frappier Treder & Weiss, LLP,” moved 19 to dismiss or, in the alternative, for a more definite statement. Dkt. 22. On June 8, 2022, 20 an Order Granting Motion to Dismiss Without Leave to Amend (“Dismissal Order”) issued, 21 Dkt. 36, and judgment was entered, Dkt. 37. 22 On June 17, 2022, Plaintiffs filed a Notice of Appeal, Dkt. 38, and a “Petition for 23 Reconsideration Pursuant to Civil Procedure Section 1008,” Dkt. 40. In the petition, 24 Plaintiffs seek reconsideration of the Dismissal Order under California Code of Civil 25 Procedure § 1008. “It is well-settled that the Federal Rules of Civil Procedure apply in 26 federal court, ‘irrespective of the source of the subject matter jurisdiction, and irrespective 27 of whether the substantive law at issue is state or federal.” Kearns v. Ford Motor Co., 567 1 Civ. P. 1. (“These rules govern the procedure in all civil actions and proceedings in the 2 United States district courts, except as stated in Rule 81.”). The petition is therefore 3 construed as a motion for reconsideration under Federal Rule of Civil Procedure 59(e). 4 As a threshold matter, jurisdiction to adjudicate the motion for reconsideration is 5 uncertain. “The filing of a notice of appeal generally divests the district court of 6 jurisdiction over the matters appealed.” Davis v. United States,

, 824 (9th Cir. 7 1982). A notice of appeal does not divest the district court of jurisdiction if, at the time it 8 was filed, “there was a pending motion for reconsideration.” United Nat’l Ins. Co. v. R&D 9 Latex Corp.,

(9th Cir. 2001) (citing Fed. R. App. P. 4(a)(4)(B)(i)). 10 However, the district court lacks jurisdiction to entertain a motion for reconsideration that 11 is “filed after the notice of appeal has been filed[.]” Katzir’s Floor & Home Design, Inc. v. 12 M-MLS.com,

, 1148 (9th Cir. 2004) (citing Williams v. Woodford,

(9th Cir. 2004) (vacating order denying motion for reconsideration for lack of 14 jurisdiction where the motion was filed after the notice of appeal and the movant did not 15 follow the procedure for seeking a remand of the case back to the district court); Carriger v. 16 Lewis,

(9th Cir. 1992) (en banc) (same)). 17 Here, the notice of appeal and motion for reconsideration were filed on the same 18 day. There is no clear authority regarding the jurisdiction of the district court to entertain a 19 motion for reconsideration that is filed simultaneously with a notice of appeal. See 20 Perfumebay.com v. eBay, Inc., No. CV 04-1358-WDK (SSX),

, at *1 21 (C.D. Cal. Dec. 6, 2005) (and authorities cited therein). Notably, the notice of appeal was 22 docketed before the motion for reconsideration. Because the motion for reconsideration 23 was not “pending” when the notice of appeal was filed, jurisdiction may be lacking. See, 24 e.g., ConocoPhillips Co. v. Milestone Pac. Properties, LLC, No. C 10-00079 SBA, 2010

, at *1 (N.D. Cal. Nov. 3, 2010). If so, “the proper procedure is to ask the 26 district court whether it wishes to entertain the motion, or to grant it, and then move [the 27 appellate] court, if appropriate, for remand of the case.” Williams,

1 In the interest of judicial economy, however, the motion for reconsideration shall be 2 addressed on the merits. A district court may properly reconsider a prior order under Rule 3 59(e) if it “(1) is presented with newly discovered evidence, (2) committed clear error or 4 the initial decision was manifestly unjust, or (3) if there is an intervening change in 5 controlling law.” Smith v. Clark Cty. Sch. Dist.,

(9th Cir. 2013) 6 (quotation marks and citation omitted). Reconsideration is an “extraordinary remedy, to be 7 used sparingly in the interests of finality and conservation of judicial resources.” Carroll v. 8 Nakatani,

(9th Cir. 2003). A motion for reconsideration “may not be 9 used to relitigate old matters, or to raise arguments or present evidence that could have been 10 raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker,

, 485 n.5 11 (2008) (internal quotation marks omitted).1 12 Plaintiffs do not identify newly discovered evidence or an intervening change in 13 controlling law. Nor do they identify any clear error or injustice. Rather, Plaintiffs merely 14 rehash issues underlying the motion to dismiss. For example, Plaintiffs complain that the 15 district court faulted the Trial by Affidavit for failing to set forth claims for relief instead of 16 “making [a] decision based upon the law (NESARA) or (FDCPA)….” Pet. at 3. However, 17 in addition to stating that the Trial by Affidavit failed to set forth individual claims, the 18 Dismissal Order noted that Plaintiffs’ opposition mentioned the Fair Debt Collections 19 Practices Act (“FDCPA”) and found that leave to amend to allege such a claim was 20 unwarranted. Dismissal Order at 5. Plaintiffs offer no argument challenging the merits of 21 that finding.2 Plaintiffs also complain that they “filed Trial by Affidavit, for Equity 22 Maxims remedy ‘Affidavit stand as true unless rebutted,’” but the action was 23 1 In addition to seeking to alter or amend a judgment under Rule 59(e), a party may 24 seek relief from a judgment under Rule 60(b). Plaintiffs do not seek relief under Rule 60(b) and none of the enumerated grounds upon which such a motion may rest are satisfied here. 25 2 The Dismissal Order did not address “NESARA,” which was not raised in the Trial 26 by Affidavit. Plaintiffs could have raised this purported “law” in their opposition to the motion to dismiss but failed to do so. Notably, insofar as “NESARA” refers to the National 27 Economic Stabilization and Recovery Act, no such law has been enacted. See https://www.usatoday.com/story/news/factcheck/2022/04/13/fact-check-no-congress-has- 1|| “recharacterized” as a civil complaint. Pet. at 2. This argument, which also could have 2|| been raised in response to the motion to dismiss, is without merit. Plaintiffs filed this as a 3}| civil action; it was not “recharacterized” by the court. Additionally, there is no mechanism in law or equity for a “Trial by Affidavit.” Plaintiffs cite no authority to the contrary. 5 Accordingly, assuming jurisdiction exists to entertain Plaintiffs’ motion for reconsideration, it is denied. Alternatively, should jurisdiction be lacking, this order serves 7|| as notice that the district court does not wish to entertain or grant such a motion and a request to remand the action for that purpose is unwarranted. 9 IT IS SO ORDERED. 10 Dated: 7/1/2022 arwtes Densling ll Richard Seeborg for Saundra B. ArnfStrong United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-