Joel D Joseph v. State Bar of California
Filing
31
MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court hereby DENIES Plaintiff's Motion for Relief pursuant to Rule 60(b) 24 . Court Reporter: Not Present. (gk)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-6598 CAS (AGRx)
Title
JOEL D. JOSEPH v. THE STATE BAR OF CALIFORNIA
Present: The Honorable
Date
May 16, 2012
CHRISTINA A. SNYDER
CATHERINE JEANG
Deputy Clerk
Not Present
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not Present
Not Present
Proceedings:
I.
(In Chambers:) PLAINTIFF’S MOTION FOR RELIEF
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
60 (filed 04/10/12)
INTRODUCTION
On August 11, 2011, plaintiff Joel D. Joseph filed his initial complaint in this
Court against defendant the State Bar of California (“the State Bar”) alleging a claim for
age discrimination under the Age Discrimination in Employment Act, codified as 29
U.S.C. §§ 621–634. On October 3, 2011, the Court dismissed plaintiff’s complaint
without prejudice on the basis that the State Bar is a state agency entitled to sovereign
immunity pursuant to the Eleventh Amendment. Dkt. No. 13.
On November 1, 2011, plaintiff filed his first amended complaint (“FAC”), which
the State Bar again moved to dismiss. On January 23, 2012, the Court held a hearing at
which it indicated that it would take the matter under submission and issue an order
concerning defendant’s motion shortly thereafter. On January 25, 2012, the Court issued
an order dismissing plaintiff’s case with prejudice. Dkt. No. 22.
Plaintiff filed the instant motion for relief pursuant to Rule 60 on April 10, 2012.
The State Bar filed its opposition on April 16, 2012. After considering the parties’
arguments, the Court finds and concludes as follows.
II.
BACKGROUND
Defendant is a constitutional entity established in the judicial branch of state
government. Cal. Const., art. VI § 9. It was created as an administrative adjunct to assist
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CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-6598 CAS (AGRx)
Date
May 16, 2012
Title
JOEL D. JOSEPH v. THE STATE BAR OF CALIFORNIA
the California Supreme Court in attorney admission and discipline matters. Cal. Stats.
1927, Ch. 34, Cal. State Bar Act, codified at Cal. Bus. & Prof. Code, §§ 6001 et seq.
Plaintiff, a 63 year-old attorney who has taken and passed bar exams in Maryland
and the District of Columbia, has taken the California Bar Exam four times without
success. Most recently, plaintiff failed the California Bar Exam in July of 2010. FAC ¶
10. Plaintiff alleges that the State Bar’s grading method discriminated against him on the
basis of his age, former residency, and experience. Id. at ¶¶ 19, 34.
III.
LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-6598 CAS (AGRx)
Date
May 16, 2012
Title
JOEL D. JOSEPH v. THE STATE BAR OF CALIFORNIA
The Ninth Circuit has held that pursuant to Rule 60(b), a court may grant relief
from a final judgment and any order based on: “(1) mistake, surprise, or excusable
neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or
discharged judgment; or (6) extraordinary circumstances which would justify relief.”
School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993). Under Rule 60(b)(6), the so-called catch-all provision, the party seeking
relief “must demonstrate both injury and circumstances beyond his control that prevented
him from proceeding with the action in a proper fashion.” Latshaw v. Trainer Wortham
& Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006). In addition, the Ninth Circuit recently
confirmed that “[t]o receive relief under Rule 60(b)(6), a party must demonstrate
extraordinary circumstances which prevented or rendered him unable to prosecute his
case.” Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010). This Rule must be “used
sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only
where extraordinary circumstances prevented a party from taking timely action to prevent
or correct an erroneous judgment.” Id. (quoting United States v. Washington, 394 F.3d
1152, 1157 (9th Cir. 2005)). Any Rule 60(b) motion must be brought within a reasonable
time and no later than one year after entry of judgment or the order being challenged.
See Fed. R. Civ. P. 60(c)(1).
IV.
DISCUSSION
Plaintiff requests that the Court amend its January 25, 2012 order so that it is not a
final judgment. According to plaintiff, he was never served with the Court’s order, and
therefore failed to timely file an appeal to the Ninth Circuit. Mot. at 2–3.
The Court finds that plaintiff has failed to set forth good cause for the requested
relief. In reaching this conclusion, the Court notes that plaintiff’s purported failure to
receive service was apparently due to his inability to keep the Court informed of his
correct address.1 Pursuant to Local Rule 41-6, plaintiff was required to keep the Court
1
The Court mailed a copy of its January, 25, 2012 order to plaintiff at the address
plaintiff used on his pleadings: “9935 South Santa Monica Bld., Beverly hills, CA
90212.”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-6598 CAS (AGRx)
Date
May 16, 2012
Title
JOEL D. JOSEPH v. THE STATE BAR OF CALIFORNIA
apprised of his current address. Plaintiff has not set forth any reason why his failure to
file a notice of change of address should be excused.2
Further, the Court finds that plaintiff is not significantly prejudiced by the denial of
this motion. While plaintiff is now unable to appeal the Court’s January, 25 2012 order,
it does not appear to be a close question whether the State Bar is a state agency entitled to
sovereign immunity.
V.
CONCLUSION
In accordance with the foregoing, the Court hereby DENIES plaintiff’s motion for
relief pursuant to Rule 60(b).
IT IS SO ORDERED.
00
Initials of Preparer
:
00
CMJ
2
Plaintiff’s reliance on Lemoge v. United States, 587 F.3d 1188 (9th Cir. 2009), is
misplaced. In that case, the Court found the attorney’s failure to timely respond to an
order to show cause and to properly serve defendants was excusable due to an injury that
required multiple surgeries. In contrast, plaintiff has given no explanation why he waited
nearly three months to check on the status of his case. Such inexcusable neglect does not
meet the requirements of Rule 60(b).
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