Spain v. EMC Mortgage Company et al, No. 2:2007cv00308 - Document 267 (D. Ariz. 2009)
Court Description: ORDER denying 253 Motion for New Trial; denying 253 Motion for Reconsideration ; denying 253 Motion for Hearing. That plaintiff B. Spain shall have 15 days from the date of entry of this order in which to file and serve a memorandum of law and any supporting documentation which he deems appropriate directed to the issue of the propriety of entering a pre-filing order herein. Defendants shall have 10 days thereafter in which to file and serve a response, if any. No reply shall be filed without permission of the court. Signed by Judge Robert C Broomfield on 8/19/09.(DMT, )
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Spain v. EMC Mortgage Company et al Doc. 267 1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 B. Spain, ) ) 13 Plaintiff, ) ) 14 vs. ) ) 15 EMC Mortgage Company, et al., ) ) 16 Defendants. ) ) 17 18 No. CIV 07-0308-PHX-RCB O R D E R Currently pending before the court is a “Motion for New Trial, 19 Rehearing, and Reconsideration” by plaintiff pro se B. Spain (doc. 20 253). There is no basis for any of the relief which he is seeking, 21 as explained below. Therefore, the court denies plaintiff’s motion 22 in its entirety. 23 24 Background On February 24, 2009, the court issued its third substantive 25 order in this case - Spain v. EMC Mortgage Co., 2009 WL 464983 (D. 26 Ariz. 2009) (“Spain III”). Assuming familiarity with those prior 27 orders, the court will limit its recitation of the factual 28 background to the Warranty Deed upon which plaintiff continues to Dockets.Justia.com 1 rely to establish his ownership interest in the subject property, 2 and hence standing. 3 4 In Spain III this court rejected plaintiff’s argument that he had Article III standing based upon that Deed, explaining: 5 Despite what plaintiff might believe, that Deed did not convey any portion of the Alpine property to him individually. It is plain from the face of the Warranty Deed that the property was conveyed to the “ABS PROPERTY TRUST[,]” and to plaintiff solely in his capacity as trust “Beneficiary[.]” . . . However, “the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust.” Orff v. United States, 358 F.3d 1137, 1148 (9th Cir. 2004) (internal quotation marks and citation omitted). Thus, as a trust beneficiary, plaintiff lacks standing to pursue claims on behalf of the trust. 6 7 8 9 10 11 12 Spain III, 2009 WL 464983, at *6 (citation omitted) (emphasis 13 added). 14 15 16 17 18 19 20 In concluding, this court reiterated: The Warranty Deed . . . does not support a finding that plaintiff has standing here because on its face that Deed shows that plaintiff is a trust beneficiary and, as such, is not the real party in interest. Any rights which that Deed may establish in the subject property are rights belonging to the ABS Property Trust-not to plaintiff. To the extent plaintiff believes that he has been deprived of his rights as a trust beneficiary, then he has sued the wrong parties. Id. at *8 (emphasis added). The basis for plaintiff’s present motion is a purportedly 21 “corrected” Warranty Deed. 22 that the Warranty Deed upon which the court focused in Spain III 23 had a “typographical error[,]” in that it “was erroneously made out 24 to ABS PROPERTY TRUST & B. Spain Beneficiary[,]” rather than to 25 plaintiff as “an individual[.]” 26 citation omitted) (emphasis in original). 27 Spain III, plaintiff asserts that that “error has . . . been 28 corrected . . . by re-recording the original deed.” Mot. (doc. 253) at 2. Plaintiff claims Id. (internal quotation marks and -2- Since the issuance of Id. 1 Apparently plaintiff re-recorded the original deed to “correct 2 grantee information[,]” on March 6, 2009 - ten days after the 3 issuance of Spain III. 4 particularly, rather than indicating as it did in the Spain III 5 record that the “GRANTEE” was “ABS PROPERTY TRUST B.Spain, 6 Beneficiary[,]” the Warranty Deed now reads that the “GRANTEE” is 7 “ABS PROPERTY TRUST B. Spain, Beneficiary Individually[.]” Id., 8 exh. C thereto at 10. 9 “alteration[.]” 10 marks omitted). 11 See id., exh. C thereto at 9.1 More Plaintiff readily admits that he made this Reply (doc. 262) at 3, n. 2 (internal quotation Plaintiff reasons that because that “error” as to his status 12 has been “corrected,” he is “an actual owner of the property.” 13 Mot. (doc. 253) at 2. 14 standing to bring this lawsuit. 15 “cure[d] the surface standing problem[,]” plaintiff is seeking 16 reconsideration and urging the court to allow his case to “proceed 17 on the merits.” Plaintiff thus maintains that he has Accordingly, believing that he has Id. at 4. 18 As the Poli & Ball defendants2 construe this motion the “newly 19 created ‘Deed’[,]” and plaintiff’s assertion that the original deed 20 conveying the property to him solely as beneficiary was a 21 typographical error, is tantamount to newly discovered evidence. 22 See Resp. (doc. 254) at 2:9. Starting from that premise, Poli & 23 1 24 25 26 27 28 Plaintiff’s motion, reply and supporting documentation either do not include page numbers or are incomplete. Therefore, for ease of reference, the court is relying upon the numbers designated by the CM/ECF system. 2 As it has throughout this litigation, the court is continuing to group the numerous defendants based upon their shared counsel. See Spain v. EMC Mortgage Co., 2008 WL 2328358, at *1 n. 1 (D.Ariz. June 4, 2008) (citation omitted). Additionally, defendants Bank of America (“BOA”), EMC, Pite Duncan, Quality Loan, and David Huston have each expressly joined in and adopted Poli & Ball’s response. See Docs. 255; 256; 257; 258; and 259. Thus, hereinafter all references to Poli & Ball shall be read as including these defendants as well. -3- 1 Ball proffer three reasons as to why plaintiff is not entitled to 2 relief under Rule 59(e) based upon this evidence. 3 maintain that plaintiff’s “proffered testimony is not newly 4 discovered” because “it was in his possession before” the issuance 5 of Spain III. 6 plaintiff has “not even attempt[ed] to show that the evidence could 7 not have been discovered through due diligence.” 8 Third, Poli & Ball assert that this purportedly newly discovered 9 evidence is not admissible. Id. at 3:3-4. First, they Second, Poli & Ball point out that Id. at 3:10-11. Thus, it would not be “likely to 10 change the disposition of the case[,]” and hence does not justify 11 reconsideration. 12 Id. at 4:12. Plaintiff strenuously denies that he is seeking 13 reconsideration based upon newly discovered evidence. 14 plaintiff claims to be seeking that relief “only to correct the 15 obvious error.” 16 error, as plaintiff describes it, is a “typographical error, made 17 by another, that came to be seized upon by the court[]” in Spain 18 III, “the court thinking that the [Warranty Deed] it was looking at 19 w[as] correct.” 20 relying upon a stock certificate to show his ownership in “Aurora 21 Management, Ltd., a Nevada corporation[]” (“Aurora”). 22 Plaintiff believes that that stock certificate is further proof of 23 his ownership of the real property at issue. 24 plaintiff’s standpoint the “corrected” Warranty Deed and the stock 25 certificate establish that he has standing. 26 entitled to reconsideration on that issue. 27 . . . Rather, Reply (doc. 262) at 1 (footnote omitted). Id. That Further, for the first time plaintiff is 28 -4- Id. at 4. Thus, from Therefore he is 1 2 3 Discussion I. New Trial The sole basis for plaintiff’s motion is Fed. R. Civ. P. 59. 4 Invoking that Rule, plaintiff is seeking “a new trial . . . and 5 . . . rehearing and reconsideration of [this court’s] order . . . , 6 and the judgment entered thereon.” 7 joining in and adopting the arguments of Poli & Ball, defendant BOA 8 makes the additional argument that plaintiff’s reliance upon Rule 9 59 is “improper because under [that] Rule . . . , a motion for a Mot. (doc. 253) at 1. After 10 new trial may only be made after a jury or nonjury trial.” 11 Resp. (doc. 256) at 1:20-21 (citation omitted). 12 argument, BOA relies upon subsections (a)(1)(A) and (a)(1)(B), 13 which “[i]n general” set forth the “[g]rounds for a [n]ew 14 [t]rial[,]” both as to jury and non-jury trials. 15 59(a)(1)(A)-(B). 16 BOA In making this Fed. R. Civ. P. BOA is correct that to the extent plaintiff is seeking a new 17 trial, his reliance upon those particular subsections of Rule 59 is 18 misplaced because no trial ever occurred in this action. 19 the lack of a trial in the first instance, there is no authority 20 for granting a “new trial” under Rule 59, or, for that matter, 21 under any other authority. 22 insofar as plaintiff is seeking a “new trial,” his motion must be 23 denied. 24 Due to Accordingly, the court agrees that Because plaintiff Spain also seeks “reconsideration,” it is 25 possible that he is relying upon subsection (e) of Rule 59, which 26 can be a basis for a motion for reconsideration, even absent a 27 trial. 28 (internal quotation marks and citation omitted) (“Rule 59(e) See Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) -5- 1 permits a district court to reconsider and amend a previous 2 order[.]”) Therefore, while the court agrees that plaintiff cannot 3 rely upon subsection (a) of Rule 59, that does not foreclose his 4 reliance upon subsection (e) of that Rule as a basis for 5 reconsideration. 6 II. Reconsideration 7 Although the Ninth Circuit “permits a district court to 8 reconsider and amend a previous order,” pursuant to Rule 59(e), it 9 cautions that that Rule “offers an extraordinary remedy, to be used 10 sparingly in the interests of finality and conservation of judicial 11 resources.” 12 There are three well-recognized bases for Rule 59(e) relief: 13 (1) the district court is presented with newly discovered evidence, 14 (2) the district court committed clear error or made an initial 15 decision that was manifestly unjust, or (3) there is an intervening 16 change in controlling law.” 17 Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (internal 18 quotation marks and citation omitted); accord LRCiv 7.2(g)(1)(a) 19 (“The Court will ordinarily deny a motion for reconsideration . . . 20 absent a showing of manifest error or a showing of new facts or 21 legal authority that could not have been brought to its attention 22 earlier with reasonable diligence.”) “[O]ther, highly unusual, 23 circumstances” also may “warrant[] reconsideration.” 24 No. 11, Multnomah County, Or. v. AC & S, Inc., 5 F.3d 1255, 1263 25 (9th Cir. 1993). Id. (internal quotation marks and citation omitted). “[I]f United Nat. Ins. Co. v. Spectrum Sch. Dist. 26 A Rule 59(e) motion is not a vehicle though for “rais[ing] 27 arguments or present[ing] evidence for the first time when they 28 could reasonably have been raised earlier in the litigation.” -6- 1 Carroll, 342 F.3d at 945 (citation omitted). 2 for Rule 59(e) relief presents a “high hurdle.” 3 246 F.3d 1231, 1236 (9th Cir. 2001). 4 for reconsideration under that Rule will not be reversed “absent an 5 abuse of discretion.” 6 (citation omitted). 7 The showing required Weeks v. Bayer, Moreover, denial of a motion Spectrum Worldwide, 555 F.3d at 780 Plaintiff Spain is not relying upon an intervening change in 8 controlling law as a basis for this motion. 9 construe this motion as being based upon newly discovered evidence, Although defendants 10 as noted above, plaintiff denies that reading. 11 court will accept plaintiff’s denial at face value. 12 that, the only possible bases for Rule 59(e) relief are the 13 commission of “clear error” or a “manifestly unjust initial 14 decision.” For the moment, the When it does As explained below, plaintiff has shown neither. 15 A. 16 As plaintiff admits, the asserted error was not the court’s, “Clear Error” or “Manifestly Unjust” 17 but rather an “error” in the Warranty Deed which he did not 18 “discover[]” until after Spain III. 19 Plaintiff candidly states that he “never noticed this error [his 20 trust beneficiary status versus individual capacity] 21 pleadings in this matter were filed, and only discovered the error 22 when he was reviewing this court’s [Spain III] order and the 23 underlying documents. 24 in a similar vein, explaining that “[t]he court’s extensive 25 discussion” in Spain III “caused him to re-trace his steps and 26 review his documents[,]” at which point he “discovered” the 27 asserted “typographical error” in that Deed. 28 so far as to “apologize[] to all in not discovering this error Mot. (doc. 253) at 3. Id. (emphasis added). -7- when the Plaintiff continues Id. Plaintiff goes 1 before.” 2 “much of the court’s exasperation in [Spain III] in finding no 3 ownership is understandable[]” given that the “error” in the 4 Warranty Deed was due to the fact that at that point, the “error” 5 had not been “corrected[.]” Id. 6 Id. Continuing in that tone, plaintiff acknowledges that Reconsideration due to “clear error” is limited to the 7 commission of such error by the district court – not commission of 8 an error by a party. 9 reconsideration where, as here, a party fails to take into account 10 the legal significance of its evidence when it is being proffered. 11 Cf. Schlicht v. United States, 2006 WL 229551, at *2 (D.Ariz. Jan. 12 30, 2006) (Rule 60(b), governing post-judgment relief, “not 13 intended to reward the lackadaisical or unscrupulous litigant who 14 fails to make a timely offer of evidence.”) 15 plaintiff has not pointed to any “clear error” committed by this 16 court, he is not entitled to reconsideration on that ground. 17 Furthermore, “clear error” is not a basis for Thus, because Likewise plaintiff has not even suggested, much less shown, 18 that the court’s decision in Spain III was manifestly unjust. 19 Warranty Deed upon which plaintiff is now relying is not the same 20 Deed which formed the basis for the court’s finding of lack of 21 standing in Spain III. 22 that initial decision given the record before the court then; and 23 plaintiff does not contend otherwise. 24 not established that the court should reconsider Spain III because 25 it is manifestly unjust. The There was nothing “manifestly unjust” about Consequently, plaintiff has 26 B. 27 The court is keenly aware that plaintiff is disavowing that 28 “Newly Discovered Evidence” the “corrected” Deed is newly discovered evidence. -8- However, 1 because he has not prevailed on any of the other bases for relief 2 under Rule 59(e), and because that is the sole focus of defendants’ 3 opposition, the court will address the issue of whether the 4 “corrected” Deed constitutes newly discovered evidence for Rule 5 59(e) purposes. 6 plaintiff some leniency due to his pro se status. 7 2009 WL 464983, at *1. In so doing, the court is, once again, granting See Spain III, 8 “To prevail on a Rule 59(e) motion because of newly discovered 9 evidence, the movant must show the evidence (1) existed at the time 10 of the . . . proceeding at which the ruling now protested was 11 entered; (2) could not have been discovered through due diligence; 12 and (3) was of such magnitude that production of it earlier would 13 have been likely to change the disposition of the case.” 14 Bardales, 526 F.3d 563, 573 (9th Cir. 2008) (Bea, J., dissenting) 15 (internal quotation marks and citation omitted) (emphasis added). 16 The “corrected” Warranty Deed does not satisfy even one of these 17 criteria, let alone all three. 18 “newly discovered evidence” so as to warrant reconsideration of 19 this court’s holding in Spain III that plaintiff lacks standing. 20 Before briefly considering those criteria, the court is Duarte v. Thus, that Deed does not constitute 21 compelled to comment upon the content of the recently proffered 22 “corrected” deed and the circumstances surrounding its re- 23 recording. 24 of the original deed as containing a “typographical” error. 25 Mot. (doc. 253) at 1. 26 from the fact that the conveyance there was to plaintiff in his 27 capacity as a trust “beneficiary” as opposed to “individually.” 28 Transposing an entire word, especially when those words are spelled The court disagrees with plaintiff’s characterization See This supposed typographical error arises -9- 1 quite differently, is not a mere typographical error, despite how 2 plaintiff tries to portray it. 3 example, the difference between the word “data” and the word 4 “date.” 5 inadvertently could be interposed one for the other. 6 not true, however, of the words “beneficiary” and “individually.” 7 A typographical error would be, for It is easy to see how in transcription those two words The same is Plaintiff fares no better with his contention that because the 8 December 30, 1996 note3 is made out to “ABS PROPERTY TRUST & B. 9 Spain Individualy [sic][,]” the original Warranty Deed conveying 10 the subject property to that Trust & “B. Spain, Beneficiary[,]” 11 must be in error. 12 the present record it is impossible to discern the relationship, if 13 any, between that note and the original Deed. 14 through its Vice President, promises to pay $30,075.15, plus 15 interest, to the Trust and plaintiff, individually. 16 thereto. 17 of Arizona real property by Tornado Investments, Inc., a Nevada 18 corporation, to that same Trust and to plaintiff as “beneficiary.” 19 Id., exh. B thereto. 20 ten years after the note, and it was not recorded until the 21 following year, on February 12, 2007. 22 lack of context based upon this scant record fail to convince the 23 court, as plaintiff urges, that “[w]hoever [sic] typed the deed 24 failed to faithfully carry over to th[at] [D]eed” plaintiff’s 25 status as an individual. 26 See Mot. (doc. 253), exhs. A and B thereto. On In that note Aurora, Id., exh. A The Warranty Deed, however, purports to be a conveyance That Deed is dated August 12, 2006, almost These differences and the Id. at 2. Moreover, the timing of plaintiff’s “discovery” significantly 27 3 28 That note is part of this record; it was also in the Spain III record. - 10 - 1 undermines his argument that the original deed was “erroneously 2 made out.” 3 until two and a half years after the Warranty Deed is dated, and 4 after plaintiff reviewed Spain III and realized that his trust 5 beneficiary status was disadvantageous to him in terms of pursuing 6 this litigation. 7 at *6 (E.D.Cal. Mar. 26, 2009) (denying Rule 59(e) reconsideration 8 motion based upon newly discovered evidence where, inter alia, it 9 “appear[ed] the reason Defendants raised the issue of the See id. (citation omitted). That “discovery” was not Cf. United States v. Uptergrove, 2009 WL 840607, 10 bankruptcy . . . only when they discovered they had lost the other 11 arguments they had been pursuing[]”). 12 credence to plaintiff’s assertion that the original Warranty Deed 13 had a typographical error. 14 Thus, the court gives no Regardless of the foregoing, what is abundantly clear is that 15 the “corrected” Deed did not surface until more than a week after 16 the issuance of Spain III when apparently plaintiff re-recorded the 17 Deed to reflect the supposedly new grantee information. 18 plaintiff cannot satisfy the first criteria for newly discovered 19 evidence because the “corrected” Deed was not in existence until 20 after Spain III. 21 Therefore, For that same reason, plaintiff cannot show that the 22 “corrected” Deed could have been discovered with the 23 exercise of due diligence. 24 did not come into existence until after the court ruled could not 25 have been discovered through due diligence prior to that time. 26 Moreover, as previously discussed, plaintiff essentially admits 27 that he did not act with due diligence in terms of recognizing this 28 supposed “typographical” error in the Warranty Deed until after Obviously a document which, in effect, - 11 - 1 Spain III. 2 the more apparent given that in moving to dismiss based upon the 3 original Warranty Deed, the defendants argued that as a trust 4 beneficiary plaintiff did not have standing. 5 138) at 8, n.3; and Mot. (doc. 156) at 5. 6 plaintiff was alerted to the clear language of the Warranty Deed at 7 that time. 8 error, he could have attempted to rectify the situation at that 9 time, but he did not. 10 11 Plaintiff’s failure to exercise due diligence is all See, e.g., Mot. (doc. Thus, at the latest, If plaintiff believed that the original Deed was in What is more, plaintiff does not make any attempts to satisfy the due diligence element on this motion. Plaintiff’s lack of due diligence and his inability to show 12 that the “corrected” Deed existed at the time of Spain III 13 “obviates the need to consider” whether that Deed “is of ‘such 14 magnitude that production of it earlier would have been likely to 15 change the disposition of the case.’” Daghlian v. DeVry University, 16 Inc., 582 F.Supp.2d 1231, 1254 (C.D.Cal. 2007) (quoting Coastal 17 Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th 18 Cir. 1987)) (other citation omitted). 19 that the “corrected” Deed would not have changed the result in 20 Spain III primarily because it is inadmissible. 21 Nonetheless, the court notes In his supporting affidavit, plaintiff avers that the 22 “corrected” Deed is a “true and correct cop[y][.]” Aff. (doc. 263) 23 at ¶ 4. 24 has not shown that the grantor’s original intent was to convey the 25 subject property to plaintiff in his individual as opposed to his 26 beneficiary capacity. 27 “typographical error” was made by another,” then clearly plaintiff, 28 as grantee, lacks the requisite personal knowledge as to the That does not change the fact that plaintiff, the grantee, If, as plaintiff states, the claimed - 12 - 1 grantor’s intent. 2 record the court cannot find that the “corrected,” re-recorded Deed 3 is admissible. 4 change the court’s prior determination that plaintiff lacks 5 standing. 6 See Reply (doc. 262) at 1. Simply put, on this It necessarily follows that that Deed does not Lastly, to the extent that plaintiff is attempting to rely 7 upon the stock certificate to establish his standing, that argument 8 also lacks merit. 9 plaintiff to raise this argument in that he attaches that stock Procedurally it is too late in the day for 10 certificate to his reply. 11 cannot rely upon Rule 59(e) to present evidence for the first time 12 which they reasonably could have raised earlier in the litigation. 13 Carroll, 342 F.3d at 945. 14 tardiness by explaining that the stock certificate “had to be 15 procured from [its] safe keeping and w[as] not, due to the short 16 amount of time allowed for the filing of” this motion “available 17 for attachment to the motion itself.” 18 court’s copy of the stock certificate is not entirely legible. 19 What the court is able to discern though is that the certificate 20 was signed on November 21, “19__.” 21 the illegible numbers are, obviously this document could reasonably 22 have been provided to the court long before now. 23 reconsideration motion plaintiff cannot rely upon the stock 24 certificate to show he has standing. 25 As set forth earlier, however, a party Plaintiff attempts to justify his Reply (doc. 262) at 2. Id. at 4. The Irrespective of what Thus, on this Overlooking plaintiff’s tardy reliance upon this stock 26 certificate would not change the result here because substantively 27 plaintiff’s reliance upon that document also is misplaced. 28 Plaintiff claims that this stock certificate “further bears out the - 13 - 1 ownership issue.” 2 see how this stock certificate, indicating that he is “the owner” 3 of 550 shares of capital stock of Aurora, establishes his ownership 4 interest in the real property at issue so as to confer standing 5 upon him. 6 Mortgage Co., 2008 WL 752610, at *6 (D.Ariz. Mar. 18, 2008) (“Spain 7 I”), even as a shareholder, plaintiff lacks standing. 8 whether viewed procedurally or substantively the stock certificate 9 does not warrant the “extraordinary remedy” of reconsideration. Id. at 1-2. The court is at a loss, however, to Not only that, as the court explained in Spain v. EMC Thus, 10 See Carroll, 342 F.3d at 945 (internal quotation marks and citation 11 omitted). 12 Before concluding, the court is compelled to comment, as it 13 has previously, upon the manner in which plaintiff has conducted 14 this litigation. 15 plaintiff “regarding the use of the courts in a vexatious fashion.” 16 Id. at *8. 17 F.3d 1047 (9th Cir.2007), this court reminded plaintiff Spain that 18 “‘[f]lagrant abuse of the judicial process cannot be tolerated 19 because it enables one person to preempt the use of judicial time 20 that properly could be used to consider meritorious claims of other 21 litigants.” 22 quotation marks and citation omitted)). 23 expressly found, “at this juncture the plaintiff has not engaged in 24 a flagrant abuse of the judicial process[.]” Id. (internal 25 quotation marks and citation omitted). 26 the court also found that, “[g]iven his numerous filings, most of 27 them wholly without merit, coupled with the tone and form of those 28 filings, plaintiff [had come] . . . dangerously close to crossing In Spain I, the court explicitly “caution[ed]” Quoting from Molski v. Evergreen Dynasty Corp., 500 Id. (quoting Molski, 500 F.3d at 1057) (internal - 14 - This court in Spain I At the same time, however, 1 the line from permissible use of the judicial process to flagrant 2 abuse[.]” Id. 3 The manner in which plaintiff has continued to conduct this 4 litigation since Spain I has done nothing to dispel the court of 5 this view. 6 filing order basically precluding any further filings by plaintiff 7 in this action. 8 plaintiff from any further filings generally as to the transaction 9 which is the subject of this lawsuit and which, to a certain The court is seriously considering entering a pre- Such an order also might, perhaps, preclude 10 extent, was the subject of a prior District of Arizona Bankruptcy 11 proceeding, and the related action of Spain v. Eaglebruger Law 12 Group, 06-0712-PHX-ROS.4 13 an order, however, the court hereby gives plaintiff notice, in 14 accordance with De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 15 1990) and its progeny, that it is considering entering such an 16 order. 17 have an opportunity to be heard in this regard. 18 shall have 15 days from the date of entry of this order in which to 19 file and serve a memorandum of law and any supporting documentation 20 which he deems appropriate directed to the issue of the propriety 21 of entering a pre-filing order herein. 22 days thereafter in which to file and serve a response, if any. 23 reply shall be permitted unless so directed by the court. Keenly aware of the ramifications of such As the Hennessey line of cases requires, plaintiff shall Thus, plaintiff Defendants shall have 10 24 Conclusion 25 For the reasons set forth herein, the court hereby ORDERS 26 No that: Plaintiff’s “Motion for a New Trial Rehearing, and 27 4 28 The history of that prior litigation and its relationship to the current action is set forth in full in Spain I, 2008 WL 752610. - 15 - 1 2 Reconsideration”(doc. 253) is DENIED. The court further ORDERS that plaintiff B. Spain shall have 15 3 days from the date of entry of this order in which to file and 4 serve a memorandum of law and any supporting documentation which he 5 deems appropriate directed to the issue of the propriety of 6 entering a pre-filing order herein. 7 thereafter in which to file and serve a response, if any. 8 shall be filed without permission of the court. 9 DATED this 19th day of August, 2009. 10 11 12 13 14 15 16 17 Copies to counsel of record 18 19 20 21 22 23 24 25 26 27 28 - 16 - Defendants shall have 10 days No reply
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