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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CARL. L. JIMENA,
Plaintiff,
v.
UBS AG BANK, INC., SWITZERLAND
HEADQUARTERS; UBS AG BANK, INC.,
MANHATTAN, NEW YORK BRANCH; UBS
FINANCIAL SERVICES, INC.,
BAKERSFIELD, CALIFORNIA BRANCH;
AND UBS FINANCIAL SERVICES, INC.,
WEEHAWKEN, NEW JERSEY BRANCH;
CLIVE STANDISH,
Defendants.
1:07-cv-00367 OWW SKO
MEMORANDUM DECISION AND ORDER
RE PLAINTIFF‟S MOTION TO
VACATE, PLAINTIFF‟S MOTION IN
LIMINE, AND DEFENDANT UBS
AG‟S MOTION FOR SUMMARY
JUDGMENT
(DOC. 304, 305, 311)
I. INTRODUCTION
Plaintiff Carl L. Jimena (“Plaintiff”) proceeds with this
action for fraud, violation of state and federal commercial
codes, and intentional tort.
Before the court is Defendant UBS AG‟s (“UBS”) renewed
motion for summary judgment (Doc. 311). Plaintiff filed an
opposition, to which UBS replied (Doc. 314). The motion was heard
June 20, 2011.
Also before the court are two motions taken under submission
without hearing: (1) Plaintiff‟s motion to vacate (Doc. 304), and
(2) Plaintiff‟s motion in limine (Doc. 305). UBS filed
oppositions to both motions (Docs. 309, 310).
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II. FACTUAL BACKGROUND
Plaintiff alleges that he was defrauded in a variant of the
“Nigerian advance fee scheme” by Clive Standish1, then Chief
Financial Officer of UBS, who allegedly sent Plaintiff e-mails
from clive_standish@yahoo.com and
customerservices@privatelcientsubs.cjb.net. From these two e-
mails, Clive Standish allegedly offered to transfer $19 million
to Plaintiff‟s bank account by convincing Plaintiff to wire
$51,000 via Washington Mutual Bank, Bank of New York, and UBS to
an account at a fourth bank, HSBC, allegedly to satisfy a non-
existent “Anti Drug/Terrorist Clearance” fee required for money
transfers from Nigeria. Plaintiff alleges he wired $51,000 to the
banks. Plaintiff never received the $19 million. Plaintiff
alleges that UBS is in possession of his $51,000 and the $19
million allegedly wired to UBS by an alleged Nigerian bank,
Standard Trust Bank PLC.
III. MOTION FOR SUMMARY JUDGMENT
A. Introduction
UBS moves for summary judgment on all of Plaintiff‟s
remaining claims. Doc. 311. UBS contends that Plaintiff has not
adduced any cognizable evidence to support his claims, and cannot
meet his burden under Rule 56. Plaintiff filed an opposition
(Doc. 313), which incorporates by reference: (1) Plaintiff‟s
1 Clive Standish was named as a Defendant in this lawsuit, but has never been
served with a summons and complaint.
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motion in limine (Doc. 305); (2) motion to vacate (Doc. 304); (3)
opposition to UBS‟s motion for summary judgment (Doc. 195); (4)
opposition to UBS‟s supplemental brief in support of motion for
summary judgment (Doc. 253); (5) amended opposition to UBS‟s
supplemental brief in support of summary judgment (Doc. 261); and
(6) third supplemental brief to Plaintiff‟s opposition to UBS‟s
motion for summary judgment (Doc. 288).2 UBS filed a reply. Doc.
314.
B. Disputed Facts
UBS contends that any individual can sign up for a Yahoo.com
email account bearing the name [FIRST NAME]_[LAST NAME]@yahoo.com
without providing any evidence that he or she is the person whose
name is used in the email address, and without providing any
evidence that the person whose name is used has consented to the
2 This court‟s Standing Order provides:
Unless prior leave of court seven days before the filing date is
obtained, all briefs or memoranda in civil cases shall not exceed 25
pages . . .. Reply briefs filed by moving parties shall not exceed 10
pages.
Doc. 3, 6. Plaintiff‟s opposition, including all six incorporated documents,
far exceeds the allowable 25-page limit. Although Plaintiff is appearing in
propria persona, Plaintiff is expected to familiarize himself with, and adhere
to, all applicable rules, including the Local Rules and Standing Order.
Plaintiff has been cautioned before and continues to disregard the rules. If
Plaintiff exceeds the permissible page limits without timely prior leave, the
court will disregard Plaintiff‟s brief or memorandum to the extent it exceeds
the permissible page limit.
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use of the name. UBS also asserts that if a user types
privateclientsubs.cjb.net into a web browser, the user is
directed to the home page for www.cjb.net, a service that offers
subscribers the ability to (a) create email addresses that read
[NAME]@[ENTITY].cjb.net, and (b) create “alias” domain names that
read [ENTITY].cjb.net that redirect a web browser to some other,
unrelated internet domain. Plaintiff disputes the bases for UBS’s
contentions, i.e., the declaration of its counsel, Jacob
Kreilkamp.
UBS contends that all of Plaintiff’s allegations regarding
the representations of UBS are based on unauthenticated and
hearsay emails Plaintiff received bearing the addresses
clive_standish@yahoo.com and customerservices@privateclient
subs.cjb.net. UBS further contends that no admissible evidence
has been offered to support a finding that $19,000,000 was wired
from Standard Trust Bank PLC to UBS AG as is alleged in the Third
Amended Complaint, or to support a finding that UBS holds any
funds belonging to Plaintiff. Finally, UBS asserts no person in
his right mind could reasonably expect to receive $19 million in
return for a $51,000 fee payment, and the inherent implausibility
of the scheme should have put Plaintiff on notice that the scheme
was a fraud.
C. Legal Standard
Summary judgment is proper if “the pleadings, the discovery
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and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56.
The moving party bears the initial burden of “informing the
district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation marks
omitted). A fact is material if it could affect the outcome of
the suit under the governing substantive law; “irrelevant” or
“unnecessary” factual disputes are not considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).
If the moving party would bear the burden of proof on an
issue at trial, it must “affirmatively demonstrate that no
reasonable trier of fact could find other than for the moving
party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007). In contrast, if the non-moving party bears the burden
of proof on an issue, the moving party can prevail by “merely
pointing out that there is an absence of evidence” to support the
non-moving party’s case. Id.
When the moving party meets its burden, the “adverse party
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may not rest upon the mere allegations or denials of the adverse
party's pleadings, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e).
In ruling on a motion for summary judgment, a court does not
make credibility determinations or weigh evidence. See Anderson,
477 U.S. at 255. Rather, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in
his favor.” Id. Only admissible evidence is considered in
deciding a motion for summary judgment. Soremekun, 509 F.3d at
984. “Conclusory, speculative testimony in affidavits and moving
papers is insufficient to raise genuine issues of fact and defeat
summary judgment.” Id.
D. Discussion
UBS moves for summary judgment based on the contention that
Plaintiff has not produced any admissible evidence.
1. Clive Standish E-mails
Plaintiff‟s claims against UBS rest primarily on e-mails
purportedly sent by “Clive Standish” from two e-mail addresses:
clive_standish@yahoo.com and
customerservices@privatelcientsubs.cjb.net. See Plaintiff‟s
Exhibits 6-8, 12-13, 19-20, 25-58 (together, “Standish E-mails”).
a) Authenticity
Only admissible evidence is considered on a motion for
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summary judgment. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773
(9th Cir. 2002); see Fed. R. Civ. P. 56(e). Authentication is a
“condition precedent to admissibility,” and can by satisfied “by
evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Fed. R. Evid. 901(a). At
the summary judgment stage, the focus is not on the admissibility
of the evidence‟s form, but on the admissibility of its contents.
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
A party seeking admission of evidence need only make a prima
facie showing of authenticity. E.W. French & Sons, Inc. v. Gen‟l
Portland Inc., 885 F.2d 1392, 1398 (9th Cir. 1989). “The issue for
the trial judge in determining whether the required foundation
for the introduction of the evidence has been established is
whether the proof is such that the jury, acting as reasonable
[persons], could find its authorship as claimed by the
proponent.” United States v. Smith, 609 F.2d 1294, 1301 (9th Cir.
1979) (quoting Carbo v. United States, 314 F.2d 718 (9th Cir.
1963)). “It then remains for the trier of facts to make its own
determination of the authenticity of the admitted evidence and
the weight which it feels the evidence should be given.”
Alexander Dawson, Inc. v. N.L.R.B., 586 F.2d 1300, 1301 (9th Cir.
1978).
A proper foundation may be established through any manner
permitted by Federal Rule of Evidence 901(b) or 902. Orr, 285
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F.3d at 774.
(1) Rule 902
Rule 902 lists twelve items that do not require extrinsic
evidence of authenticity and are self-authenticating. Fed. R.
Evid. 902 (public documents, certified copies of public records,
official publications, newspapers and periodicals, acknowledged
documents, commercial paper, presumptions under Acts of Congress,
certified records of regularly conducted activity). Plaintiff
does not contend that Rule 902 is applicable to authenticate any
of his documents. There are no guarantees of trustworthiness to
the two e-mail addresses which are generic addresses that can be
personalized by anyone. There is nothing self-authenticating
about the e-mail addresses.
(2) Rule 901(b)(1)
Rule 901(b)(1) permits authentication through the testimony
of a witness with personal knowledge. Fed. R. Evid. 901(b)(1). In
a motion for summary judgment, documents authenticated through
personal knowledge under Rule 901(b)(1) must be “attached to an
affidavit that meets the requirements of [Rule] 56(e) and the
affiant must be a person through whom the exhibits could be
admitted into evidence.” Id. (quoting Canada v. Blain‟s
Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)).
Here, Plaintiff provides an affidavit declaring that he
received the Standish E-mails. See Doc. 78. Plaintiff‟s affidavit
states:
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With the exception of some documents manually obtained or in
some other way, I keep and compile these emails in
electronic storage at my email address mindoro123@yahoo.com.
I had this email address for over three years now and I am
the custodian of these email records. All my emails are
automatically recorded at or near the time of the
transaction, that is from the date and time the email is
sent to me and received by me at my In Box of my email
address with Yahoo, Inc. The date of each email appears at
the top of the letter/message. I have personal knowledge of
these emails since I read them immediately after I receive
them. Since the wire transfer transaction is important to me
I take care that records of email are not deleted from the
time they were sent to me up to the present time. Yahoo,
Inc. has a very reliable electronic storage and equipment,
where all my emails are received, and Yahoo Inc. has a good
reputation around the world for trustworthiness and
reliability of their equipment. My email address with Yahoo
is password protected. I copied all my emails with Yahoo
particularly with the wire transfer transaction to my
notebook computer using Kinko‟s Copy Store internet
connection. My notebook computer is password protected. From
my notebook computer I printed the emails. Most of the
emails were printed before filing this case.
Doc. 78, ¶ 1. Plaintiff‟s affidavit, by itself, is not sufficient
authentication of the Standish E-mails. It does not provide any
foundation that Plaintiff knows or had any prior communication
with Clive Standish. There are no identifying characteristics
that provide any foundation for linking the e-mails to Clive
Standish. Plaintiff does not include an affidavit or deposition
testimony from the purported author, Clive Standish, stating that
he wrote the e-mails. See Orr v. Bank of Am., NT & SA, 285 F.3d
764, 777 (9th Cir. 2002) (concluding that letters and memoranda
were not authenticated because Plaintiff did not submit an
affidavit from the author stating that he wrote the letters and
memoranda). Plaintiff also does not declare that he witnessed the
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writing of the Standish E-mails, only that he received them. See
id. (“Mirch's affidavit does not lay a foundation for Exhibit C.
Mirch neither wrote the memo nor witnessed Geerhart do so, and he
is not familiar with Geerhart's signature.”). The Standish E-
mails are not authenticated through personal knowledge under Rule
901(b)(1).
(3) Rule 901(b)(4)
E-mails and other electronic records are most frequently
authenticated under Rule 901(b)(4), which permits authentication
by “[a]ppearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with
circumstances.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534,
546 (D. Md. 2007). The Advisory Committee Notes to Rule 901(b)(4)
observe:
The characteristics of the offered item itself, considered
in the light of circumstances, afford authentication
techniques in great variety. Thus a document or telephone
conversation may be shown to have emanated from a particular
person by virtue of its disclosing knowledge of facts known
peculiarly to him; similarly, a letter may be authenticated
by content and circumstances indicating it was in reply to a
duly authenticated one. Language patterns may indicate
authenticity or its opposite.
Fed. R. Evid. 901(b)(4), Advisory Committee Notes (1972)
(citations omitted). Here, there are no unique circumstances that
link the printed e-mails to Clive Standish.
Citing In re Homestore.com, Inc. Sec. Litig., 347 F.Supp.2d
769, 781 (C.D. Cal. 2004), Plaintiff contends that because his
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exhibits were “produced during discovery,” they are presumptively
authenticated. Homestore.com applied the rule set forth in Orr,
285 F.3d at 777, i.e., that documents produced by a party in
discovery are deemed authentic when offered by the party-
opponent. In re Homestore.com, 347 F.Supp.2d at 781. Here,
neither UBS nor Clive Standish produced Plaintiff‟s exhibits
during discovery; rather, Plaintiff produced them. No party-
opponent offered these documents in discovery so as to permit
attribution of the identity and authenticity of the e-mails to
Clive Standish or UBS. Homestore.com and Orr are inapplicable.
Plaintiff further argues that a proper foundation has been
laid for the Standish E-mails because: (1) they include UBS‟s
phone number and address, which have been conclusively connected
to Clive Standish; and (2) the e-mail addresses from the sender
in the Standish E-mails, clive_standish@yahoo.com and
customerservices@privatelcientsubs.cjb.net, authenticate the e-
mails. Plaintiff cites United States v. Safavian, 435 F.Supp.2d
36, 40-41 (D.D.C. 2006), in support of his argument:
Exhibit 100 is also an e-mail sent from that address, but
the signature within the e-mail gives the defendant's name
and the name of his business, Janus-Merritt Strategies,
L.L.C., located in Washington, D.C. (as well as other
information, such as the business' address, telephone and
fax numbers), thereby connecting the defendant to that e-
mail address . . ..
. . .
The e-mails in question have many distinctive
characteristics, including the actual e-mail addresses
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containing the “@” symbol, widely known to be part of an e-
mail address, and certainly a distinctive mark that
identifies the document in question as an e-mail. See United
States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). In
addition, most of the e-mail addresses themselves contain
the name of the person connected to the address, such as
“abramoffj@gtlaw.com,” “David.Safavian@ mail.house.gov,” or
“david.safavian @gsa.gov.” See, e.g., Exhibits 101, 105,
106. Frequently these e-mails contain the name of the sender
or recipient in the bodies of the e-mail, in the signature
blocks at the end of the e-mail, in the “To:” and “From:”
headings, and by signature of the sender.
A district court decision is not binding on other district
courts. Hart v. Massanari, 266 F.3d 1155, 1163 (9th Cir. 2001)
(explaining that no trial court decisions are precedential).
“When a letter, signed with the purported signature of X, is
received „out of the blue,‟ with no previous correspondence, the
traditional „show me‟ skepticism of the common law prevails, and
the purported signature is not sufficient as authentication,
unless authenticity is confirmed by additional facts.” 2 KENNETH
S. BROUN, MCCORMICK ON EVIDENCE § 224 (6th ed. 2006). The same rule
applies to self-identification by a speaker in an unsolicited
telephone call. Fed. R. Evid. 901 Adv. Comm. Note (b), Ex. 6
(“The cases are in agreement that a mere assertion of his
identity by a person talking on the telephone is not sufficient
evidence of the authenticity of the conversation and that
additional evidence of his identity is required.”); United States
v. Puerta Restrepo, 814 F.2d 1236, 1239 (7th Cir. 1987); United
States v. Pool, 660 F.2d 547, 560 (5th Cir. 1981). Likewise,
“[w]hen the recipient of an e-mail attempts to prove that the
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message was authored by a particular individual whose name
appears in the header, such self-identification by designated
sender is insufficient to establish authorship.” PAUL R. RICE,
ELECTRONIC EVIDENCE: LAW & EVIDENCE 348 (2d ed. 2008). Self-
identification in an unsolicited e-mail supports authenticity,
but is not, by itself, considered sufficient. Id. Here there is
no signature of Clive Standish which any person with familiarity
with the signature purports to identify.
The Standish E-mails begin with the following address block:
CUSTOMER SERVICES DEPARTMENT
UBS, ZURICH
GESSNERALLE 3
CH- 8001 ZURICHWEBSITE: www.ubs.com
EMAIL: customerservices@privateclientsubs.cjb.net
clive_standish@yahoo.com
Tel: 411234111
Fax: 4113553864
They are all signed in type:
CLIVE STANDISH
UBS, ZURICH
Although the address and telephone number of UBS could assist
authentication, all this information is publicly available
information, which could be provided by anyone.
The e-mail addresses used by the author of the Standish E-
mails, clive_standish@yahoo.com and
customerservices@privateclientsubs.cjb.net, are also self-
serving. In contrast to the e-mails discussed in Safavian, 435
F.Supp.2d at 40-41, the e-mail addresses here are not work e-mail
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addresses which are issued by an employer and include the
employee‟s name in the e-mail address. Rather, they are from
publicly available e-mail providers, available to and sendable by
anyone.
The substance of the Standish E-mails does not support
authenticity. Plaintiff argues that because one of the Standish
E-mails uses the word “enquiry,” an English spelling of the
American “inquiry,” it “could only be attributed to Clive
Standish, an Englishman” (Doc. 194, 9); this argument is
unconvincing as it is unsupported by any identifying information
about Clive Standish. Plaintiff also contends that the Standish
E-mails are authenticated because they contain discussions of
identifiable matters, including: diverting $19 million dollars
from UBS to Rabo Bank in Holland; demanding an Anti-
Drug/Terrorist Clearance Certificate Fee; and promising to
transfer $19 million to Washington Mutual Bank after payment of
$51,000. There is no evidence outside the Standish E-mails,
however, that Clive Standish had any knowledge of or participated
in any of the subject matter.
Considering the totality of the characteristics, Plaintiff
has not laid a sufficient foundation nor evidentiary reliability
to justify admission of the Standish E-mails. The Standish E-
mails were unsolicited, contain only publicly available, self-
serving information, and do not contain any substantive or unique
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information that supports authenticity.
b) Hearsay
Hearsay is generally not admissible. Fed. R. Evid. 802.
“Hearsay” is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Fed. R. Evid. 801(c). A
“statement” includes a written assertion. Fed. R. Evid. 801(a).
The Standish E-mails, which are out of court written statements
offered to prove the truth of the matter asserted, are hearsay,
and are inadmissible unless they fit within a hearsay exception.
Citing In re Homestore.com, Inc. Securities Litigation, 347
F.Supp.2d 769, 781 (C.D. Cal. 2004), Plaintiff contends that the
Standish E-mails are not hearsay because they are admissions of a
party opponent.
Federal Rule of Evidence 801(d)(2) provides that a statement
is not hearsay if it is offered against a party and is “the
party‟s own statement, in either an individual or representative
capacity”, Fed. R. Evid. 801(d)(2)(A), or “a statement by the
party's agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the
relationship,” Fed. R. Evid. 801(d)(2)(D).
Here, Clive Standish is a Defendant and was an employee of
UBS during the period the Standish E-mails were written. However,
there is inadequate foundation to support Plaintiff‟s contention
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that Clive Standish authored the Standish E-mails. Only
statements made by and attributable to Clive Standish could
constitute admissions of a party-opponent.
2. Other E-mails
Plaintiff also submits other e-mails, including e-mails from
“Chika Umeh” at “Standard Trust Bank,” and “Attorney Smith
Coker.” Plaintiff advances the same arguments for authentication,
e.g., that the e-mails are authenticated by the “@” symbol, and
by the person‟s name in the e-mail address. For the reasons
above, this self-serving information is not sufficient to lay the
foundation for these documents. These e-mails are also
inadmissible hearsay under Federal Rules of Evidence 801 and 802.
3. Exhibits 15 and 16
UBS attacks Exhibits 15 and 16. Plaintiff labels Exhibit 15
as a “Standard Trust Bank PLC as original sender issued payment
order/slip” and Exhibit 16 as an “UBS AG Bank acceptance of the
payment order for wire transfer to beneficiary plaintiff.”
Document 305, 100. Exhibits 15 and 16 are completely illegible
photocopies. As they cannot be read, it cannot be determined
whether they can be authenticated under Federal Rules of Evidence
901 and 902 and whether they are relevant under Federal Rules of
Evidence 401 and 402. See, e.g., Curtis v. Clarian Health-Indiana
Neurology Clinic, 2011 U.S. Dist. LEXIS 18753, *15 n.2 (“[T]he
Court will not consider illegible portions of the exhibits.”);
Morrison v. Jordan, 2010 U.S. Dist. LEXIS 103226, *10-11
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(disregarding illegible drawing). The Exhibits are also
inadmissible hearsay; as they cannot be read, it cannot be
determined whether they fit into a hearsay exception. See United
States v. Pintado-Isiordia, 448 F.3d 1155, 1157 (9th Cir. 2006).
E. Conclusion
There is an absence of admissible evidence to create a
triable issue of material fact as to UBS‟s liability.
UBS’s motion for summary judgment is GRANTED.
IV. MOTION IN LIMINE
Plaintiff moves in limine to admit Plaintiff‟s exhibits
(Doc. 77) and exclude UBS‟s evidence.
UBS contends that Plaintiff‟s motion is premature, as no
scheduling order has been issued and the initial scheduling
conference is scheduled for August 26, 2011. UBS cites three
unpublished, non-citable district court cases: Harper v. Harmon,
2007 WL 4219434, *1 (E.D. Cal. 2007) (“Motions in limine must be
filed seven days prior to the trial. This motion will be denied
without prejudice to its renewal closer to trial.”); Rodriguez v.
Merez, 2007 WL 954758, *1 (E.D. Cal. 2007) (motion in limine
filed before court had issued scheduling order with dates for
motions in limine is premature); Reed v. Edmonds, 2006 WL 435453
(S.D.N.Y. 2006) (“Discovery is not yet complete and dispositive
motions have not yet been made. In view of the fact that so
little is currently known about what the trial will ultimately
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look like, I conclude that consideration of plaintiff‟s motion in
limine is premature at this time.”).
To the extent that Plaintiff seeks to determine the
admissibility of evidence for purposes of trial, Plaintiff‟s
motion, filed before the court has issued a scheduling order, is
premature. The admissibility of evidence relevant to the
disposition of UBS‟s motion for summary judgment was discussed
above.
Plaintiff‟s motion in limine is DENIED, without prejudice.
V. MOTION FOR RECONSIDERATION
A. Introduction
Plaintiff moves to vacate: (1) the February 8, 2011
memorandum decision granting UBS‟s motion to be relieved from
deemed admissions (Doc. 302); and (2) the November 3, 2010
memorandum decision and order denying Plaintiff‟s objections to
Doc. 273 and request to modify or reconsider it. Doc. 289.
Plaintiff‟s motion to vacate is in essence a motion for
reconsideration. UBS filed an opposition. Doc. 309.
B. Legal Standard
A motion for reconsideration may be brought under Rule 60(b)
if a moving party can show: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or other misconduct; (4) a void judgment; (5)
a satisfied or discharged judgment; or (6) any other reason
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justifying relief from operation of judgment. Fed. R. Civ. P.
60(b); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985).
Relief under exception (6) requires a finding of “extraordinary
circumstances.” Id.
A motion for reconsideration brought under Rule 59(e) is
appropriate where 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 was an
intervening change in controlling law.” School Dist. No. 1J v. AC
& S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A reconsideration
motion should not merely present arguments previously raised, or
which could have been raised, in a previous motion. See Backlund,
778 F.2d at 1388.
C. Discussion
Plaintiff moves for reconsideration of two previous
memorandum decisions under Rule 60(b)(4), which permits a court
to relieve a party from an order if “the judgment is void.” Fed.
R. Civ. P. 60(b)(4).
1. Reconsideration of November 3, 2010 Memorandum
Decision (Doc. 289)
The memorandum decision and order dated December 3, 2010
holds:
No further requests for reconsideration or objections to
the rulings in connection with Plaintiff’s motion to compel,
Doc. 258), or the Court’s rulings in Docs. 273, 289, or this
Memorandum Decision and Order will be entertained by the
Court.
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Doc. 295, 3. The Court will not consider Plaintiff’s motion to
reconsider its November 3, 2010 memorandum decision (Doc. 289),
as it has been raised for a third time after being previously
denied.
2. Reconsideration of February 9, 2011 Memorandum
Decision (Doc. 302)
Plaintiff contends that the February 9, 2011 memorandum
decision is void and should be reconsidered because it is based
on Doc. 289, which is void. Plaintiff‟s attack of Doc. 289 has
been rejected repeatedly and will not be further reconsidered.
Plaintiff further argues that the February 9, 2011
memorandum decision is void because: (1) the court failed to
apply estoppel; (2) the court failed to apply preclusion
sanction; and (3) the court failed to apply the best evidence
rule. Plaintiff‟s arguments are without merit. Even if they were
valid attacks on the court‟s prior decision, they would not make
it “void.” A judgment is not void within the meaning of Rule
60(b)(4) “merely because it is erroneous.” In re Sasson, 424 F.3d
864, 875 (9th Cir. 2005). The Ninth Circuit has “consistently”
held that a “final judgment is „void‟ for purposes of Rule
60(b)(4) only if the court that considered it lacked
jurisdiction, either as to the subject matter of the dispute or
over the parties to be bound, or acted in a manner inconsistent
with due process of law.” Id. at 876 (quoting United States v.
Burke, 170 F.3d 882, 883 (9th Cir. 1999)).
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Plaintiff further has failed to present any newly discovered
evidence or shown any intervening change in controlling law to
justify reconsideration of the prior memorandum decision. School
Dist. No. 1J, 5 F.3d at 1263.
Plaintiff‟s motion for reconsideration is DENIED.
VI. CONCLUSION
For the reasons stated:
1. UBS‟s motion for summary judgment is GRANTED.
2. Plaintiff‟s motion for reconsideration is DENIED.
3. Plaintiff‟s motion in limine is DENIED, without prejudice.
4. UBS shall submit a proposed form of order consistent with
this memorandum decision within five (5) days following
electronic service of this memorandum decision.
SO ORDERED.
DATED: June 24, 2011
/s/ Oliver W. Wanger
Oliver W. Wanger
United States District Judge
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