The “court need not consider arguments 26 raised for the first time in a reply brief.”
How later courts described this case
- The “court need not consider arguments 26 raised for the first time in a reply brief.”
- considering public 10 records that could be judicially noticed in deciding a Rule 12(b)(1) facial attack
- “Rule 60(b), like Rule 59(e), applies only to motions attacking 6 final, appealable orders”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 A. WAHEED CHAUDRY, Case No.: 21cv1847-GPC(AHG)
12 Plaintiff,
ORDER DENYING PLAINTIFF’S
13 v. MOTION TO ALTER, AMEND OR
VACATE JUDGMENT
14 COUNTY OF SAN DIEGO; TODD
MCCRACKEN; LUZETTE WARNER;
15 [Dkt. No. 31.]
ELIZABETH MILLER; ALEJANDRO
16 CHAVIRA, AND Does 1 through 25,
17 Defendant.
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19 Before the Court is Plaintiff’s motion to alter, amend, or vacate judgment entered
20 on September 21, 2022 pursuant to Federal Rule of Civil Procedure (“Rule”) 59(e) and
21 Rule 60. (Dkt. No. 31.) Defendants Todd McCracken and Luzette Werner (“Assessor
22 Defendants”) filed an opposition. (Dkt. No. 34.) Defendants County of San Diego,
23 Alejandro Chavira and Elizabeth Miller filed a notice of joinder with Assessor
24 Defendants’ opposition. (Dkt. No. 35.) After the Court granted Plaintiff’s request for an
25 extension of time, on November 28, 2022, Plaintiff filed a reply.1 (Dkt. No. 38.) The
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1 While Plaintiff’s reply was due on November 25, 2022, (Dkt. No. 37), Plaintiff filed it late on
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1 Court finds that the matter is appropriate for decision without oral argument pursuant to
2 Local Civ. R. 7.1(d)(1). Based on the reasoning below, the Court DENIES Plaintiff’s
3 motion to alter, amend or vacate judgment.
4 Background
5 Plaintiff A. Waheed Chaudry (“Plaintiff”), proceeding pro se, filed a complaint
6 against Defendants County of San Diego, Todd McCracken, Luzette Werner, erroneously
7 sued as Luzette Warner, Elizabeth Miller and Alejandro Chavira (collectively
8 “Defendants”) for violations of federal and state laws related to a dispute with his
9 California property tax assessment and Defendants’ alleged unconstitutional
10 administration of the state tax system governing assessment appeals. (Dkt. No. 1,
11 Compl.)
12 On September 20, 2022, the Court granted Defendants’ motions to dismiss for lack
13 of subject matter jurisdiction and dismissed the complaint with prejudice. (Dkt. No. 27.)
14 The Court concluded that Plaintiff’s claims challenging Defendants’ alleged
15 unconstitutional administration of the state tax system governing his assessment appeal
16 were barred by the Federal Tax Injunction Act because his claims interfere with the
17 administration of the state tax system and California provides a plain, speedy and
18 efficient remedy in state court. (Id. at 9-15.)
19 Plaintiff moves to alter, amend or vacate the judgment arguing that the Court
20 committed clear error under Rule 59(e) and Defendants’ counsel committed fraud in
21 obtaining the judgment pursuant to Rule 60(b)(3) and committed fraud on the Court
22 pursuant to Rule 60(d). (Dkt. No. 31-1.) Defendants respond that Plaintiff has failed to
23 meet the standard on reconsideration under both Rules 59 and 60 and merely expresses
24 his dissatisfaction with the Court’s order. (Dkt. No. 34.)
25 / / /
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late reply filing pursuant to Rule 6. (Dkt. No. 39.) Having found good cause, the Court grants Plaintiff
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1 Discussion
2 A. Legal Standard on Motion to Alter, Amend or Vacate Judgment
3 A district court may reconsider a final, appealable order under either Federal Rule
4 of Civil Procedure (“Rule”) 59(e) or Rule 60(b). United States v. Martin, 226 F.3d 1042,
5 1048 n.8 (9th Cir. 2000) (“Rule 60(b), like Rule 59(e), applies only to motions attacking
6 final, appealable orders”).
7 Under Rule 59(e), reconsideration is “appropriate if the district court (1) is
8 presented with newly discovered evidence; (2) committed clear error or the initial
9 decision was manifestly unjust, or (3) if there is an intervening change in controlling
10 law.” Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
11 Cir. 1993); see also Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). A
12 court commits clear error when “the reviewing court on the entire record is left with the
13 definite and firm conviction that a mistake has been committed.” Smith, 727 F.3d at 955
14 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “[A] Rule 59(e)
15 motion is an ‘extraordinary remedy, to be used sparingly in the interests of finality and
16 conservation of judicial resources.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014)
17 (per curiam) (quoting Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir.
18 2000)). A motion for reconsideration cannot “be used to raise arguments or present
19 evidence for the first time when they could reasonably have been raised earlier in the
20 litigation.” Kona Enters., Inc., 229 F.3d at 890. “A district court has considerable
21 discretion” when considering a Rule 59(e) motion. Turner v. Burlington N. Santa Fe
22 R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).
23 Rule 60(b)(3) provides for reconsideration upon a showing of fraud. Fed. R. Civ.
24 P. 60(b)(3). In addition, Rule 60(d)(3) allows the Court to “set aside a judgment for fraud
25 on the court.” Fed. R. Civ. P. 60(d)(3).
26 B. Rule 59(e)
27 Plaintiff argues that, under Rule 59(e), the Court committed clear error by stating
28 that Defendants presented a facial challenge on subject matter jurisdiction, thereby
1 relying on the allegations in the complaint, yet the Court also granted Defendants’ request
2 for judicial notice including documents that were not even referenced in the complaint.
3 (Dkt. No. 31-1 at 7.2) He also contends that because Defendants attacked the veracity of
4 every allegation in his complaint, their Rule 12(b)(1) challenge was factual. (Id. at 7-8.)
5 Finally, Plaintiff maintains Defendants, in their reply on the motion to dismiss, cited 31
6 new authorities, and when he filed a motion to strike the reply, or in the alternative to file
7 a sur-reply, the Court struck Plaintiff’s motion and further vacated the hearing which
8 deprived Plaintiff with an opportunity to address the 31 new cases. (Id. at 9.) Defendants
9 respond that even if the Court erred by stating the Defendants brought a facial challenge
10 under Rule 12(b)(1), under a facial review, all reasonable inferences are made in
11 Plaintiff’s favor; therefore, he cannot argue the result was manifestly unjust. (Dkt. No.
12 34 at 3-4.) They also argue that Plaintiff provides no authority that Defendants are barred
13 from citing to new authorities that further support their arguments in reply. (Id. at 4.)
14 Under Rule 12(b)(1), a party may move to dismiss for lack of subject matter
15 jurisdiction and the challenge may be facial or factual. Safe Air for Everyone v. Meyer,
16 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the
17 allegations contained in a complaint are insufficient on their face to invoke federal
18 jurisdiction.” Id. When evaluating a facial attack, the court assumes the truth of the
19 complaint's allegations and draws all reasonable inferences in plaintiff's favor. See Wolfe
20 v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Where the attack is factual, however,
21 “the court need not presume the truthfulness of the plaintiff's allegations.” Safe Air for
22 Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject
23 matter jurisdiction, a court may review extrinsic evidence beyond the complaint without
24 converting a motion to dismiss into one for summary judgment. Id.; McCarthy v. United
25 States, 850 F.2d 558, 560 (9th Cir. 1988).
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1 On the motion to dismiss, Defendants did not articulate whether they raised a facial
2 or factual claim on their Rule 12(b)(1) motion. Because they did not rely on extrinsic
3 evidence to support their motion, the Court concluded that “Defendants appear to present
4 a facial dispute as to the subject matter jurisdiction relying on the allegations in the
5 complaint.” (Dkt. No. 27 at 9.) The Court did not commit clear error by making that
6 assertion even though it granted Defendants’ request for judicial notice.
7 Considering documents subject to judicial notice is not inconsistent with a facial
8 challenge on subject matter jurisdiction. See Central Delta Water Agency v. U.S. Fish
9 and Wildlife Serv., 653 F. Supp. 2d 1066, 1079 (E.D. Cal. 2009) (considering public
10 records that could be judicially noticed in deciding a Rule 12(b)(1) facial attack); Maciel
11 v. Rice, No. CV–F–07–1231–LJO–DLB, 2007 WL 4525143, at *2 (E.D. Cal. Dec. 18,
12 2007) (“In a facial attack, subject matter jurisdiction is challenged solely on the basis of
13 the allegations contained in the complaint (along with any undisputed facts in the record
14 or of which the court can take judicial notice)”). Thus, Plaintiff has not demonstrated
15 that the Court committed clear error by reviewing Defendants’ Rule 12(b)(1) as a facial
16 challenge and considering judicially noticed documents.
17 Next, Plaintiff argues that Defendants presented a factual challenge because they
18 disputed each and every allegation in the complaint. The Court disagrees. In their
19 motion, Defendants did not challenge the truth of the factual allegations in the complaint
20 but only challenged Plaintiff’s interpretation or the significance placed on the factual
21 allegations. Therefore, Plaintiff’s argument that Defendants brought a factual challenge
22 is not supported.
23 Finally, raising authority in a reply that were not raised in the motion is not barred
24 as long as there are no new facts or different legal arguments. See e.g., Zamani v.
25 Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (The “court need not consider arguments
26 raised for the first time in a reply brief.”); Viasat, Inc. v. Acacia Commc'ns, Inc., No.
27 316CV00463BENJMA, 2018 WL 3198798, at *1 (S.D. Cal. June 26, 2018) (denying
28 motion for leave to file a sur-reply and explaining “[i]n the Court's view, Acacia's reply
1 simply responds to the arguments ViaSat raises in its opposition, which is in keeping with
2 the nature and purpose of a reply”). Here, Defendants’ reply did not raise any new facts
3 or arguments.
4 Further, the Court struck Plaintiff’s motion to strike the reply because it received
5 the motion after the motion to dismiss had been fully briefed and judgment had already
6 been entered. Moreover, Plaintiff’s motion to strike was not procedurally proper as he
7 did not timely seek leave to file a motion to strike. Additionally, in striking Plaintiff’s
8 motion, the Court addressed Plaintiff’s arguments in its order. (See Dkt. No. 30.)
9 Finally, the Court exercised its discretion to submit the motion to dismiss on the papers.
10 See Local Civ. R. 7.1(d)(1) (“A judge may, in the judge’s discretion, decide a motion
11 without oral argument.”). Plaintiff has not shown that the Court committed clear error in
12 its rulings.
13 Lastly, Plaintiff contends that the Court erred by stating that Plaintiff challenged a
14 procedural ruling and not a substantive ruling of the Board but he does not explain why
15 the statement was clear error. (Dkt. No. 31-1 at 15.) Whether Plaintiff’s challenge was
16 procedural or substantive is of no consequence because his claims are nonetheless barred
17 pursuant to the Federal Tax Injunction Act. (See Dkt. No. 27 at 14.) The Court’s ruling
18 did not rest on the fact that Plaintiff’s challenge was to a procedural ruling.
19 Accordingly, in sum, the Court DENIES Plaintiff’s motion to vacate, alter or
20 amend judgment under Rule 59(e). Because the Court denies Plaintiff’s motion, the
21 Court also denies his request that the Court consider his declaration and attached exhibits
22 filed in opposition to Defendants’ motion to dismiss.
23 C. Rule 60(b)(3) and Rule 60(d)
24 Plaintiff argues that Defendants’ counsel, by arguing that Findings of Fact are not
25 necessary for judicial review, have committed fraud under Rule 60(b)(3) and also
26 perpetrated fraud on the Court under Rule 60(d) because they knew or should have
27 known that Findings of Fact are necessary for judicial review as it is clearly written in
28 their pamphlet and publications. (Dkt. No. 31-1 at 11-12.) He claims that defense
1 counsel knowingly and intentionally misled the Court and they are judicially estopped
2 from taking inconsistent opinions. (Id. at 14-15.) Defendants respond that they do not
3 dispute the content in the County’s pamphlet about written Findings of Fact but argue
4 that in their reply they stated that “review of an AAB3 decision in the superior court is not
5 contingent on the existence of written findings.” (Dkt. No. 34 at 5.)
6 Rule 60(b)(3) provides that a party may move for relief from judgment on the basis
7 of “fraud, . . . misrepresentation, or other misconduct of an adverse party.” Fed. R. Civ.
8 P. 60(b)(3). Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at
9 those which are factually incorrect.” In re M/V Peacock, 809 F.2d 1403, 1405 (9th Cir.
10 1987). In addition, Rule 60(d) provides that a court may set aside a judgment based on
11 “fraud on the court.” Fed. R. Civ. P. 60(d)(3). “Fraud on the court” is “fraud which
12 does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court
13 so that the judicial machinery cannot perform in the usual manner its impartial task of
14 adjudging cases that are presented by adjudication.” Alexander v. Robertson, 882 F.2d
15 421, 424 (9th Cir. 1989) (citation omitted). “In determining whether fraud constitutes
16 fraud on the court, the relevant inquiry is not whether fraudulent conduct prejudiced the
17 opposing party, but whether it harmed the integrity of the judicial process.” United States
18 v. Stonehill, 660 F.3d 415, 444 (9th Cir. 2011) (internal quotations omitted).
19 “Inconsistent testimony by a witness is not the type of fraud upon the court that could
20 reopen a judgment.” Becker v. Cresst, 24 F.3d 244, 1994 WL 142968, at *2 (9th Cir.
21 1994). Generally, non-disclosure, or perjury by a party or witness, does not alone amount
22 to fraud on the court. In re Levander, 180 F.3d 1114, 1119 (9th Cir. 1999). Courts
23 should narrowly read “fraud on the court” to preserve final judgments. Latshaw v.
24 Trainer Wortham & Co., Inc., 452 F.3d 1097, 1104 (9th Cir. 2006).
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1 The County of San Diego’s pamphlet on Assessment Appeals states, “[w]ritten
2 Findings of Fact is a written summary of the AAB's decision and is usually needed only
3 if you intend to appeal an adverse ruling to the superior courts.” (Dkt. No. 33, Pl’s Not.
4 of Errata, Ex. 2 at 30.) California State Board of Equalization Publication 30 states that
5 “[y]ou may request a written summary of the facts and evidence used by the appeals
6 board in reaching its decision on your appeal. These ‘findings of facts’ are necessary if
7 the board's decision is not in your favor and you intend to appeal in superior court . . . .”
8 (Id., Ex. 1 at 18.)
9 In the underlying motion to dismiss, Defendants replied that a “[r]eview of an
10 AAB decision in the superior court is not contingent on the existence of written findings
11 but rather the finality of the decision.” (Dkt. No. 25 at 4.) Further, they argued that even
12 if there is no adequate remedy at law, California Code of Civil Procedure section 1086
13 provides taxpayers with relief through a writ of mandate. (Dkt. No. 8 at 17.)
14 As explained in the Court’s order, the absence of written Findings of Fact does not
15 bar judicial review in state court. (Dkt. No. 27 at 14.) Therefore, Defendants’ reply
16 assertion that review of the AAB’s decision is not contingent on the existence of written
17 findings was not false or fraudulent. However, the Court recognizes that the absence of
18 Findings of Fact will likely affect an appellant’s ability to bear his or her burden. (See
19 id.)
20 Nonetheless, California provides a plain, speedy and efficient remedy for taxpayers
21 to challenge their residential property tax, and if there is no adequate remedy at law,
22 taxpayers may seek relief through a writ of mandate under California Code of Civil
23 Procedure section 1086. (Id. at 11-14.) As such, the Court ruled that Plaintiff’s
24 challenges were barred by the Federal Tax Injunction Act as well as under the doctrine of
25 comity. (Id. at 9-13.) Accordingly, the Court DENIES Plaintiff’s motion under Rule
26 60(b) and 60(d) and also DENIES Plaintiff’s request for leave to file an amended
27 complaint.
28 / / /
1 Conclusion
2 Based on the above, the Court DENIES Plaintiff’s motion to alter, amend, or
3 || vacate judgment pursuant to Rule 59(e) and Rules 60(b) and 60(d).
4 IT IS SO ORDERED.
5 Dated: December 13, 2022 2 sale Ok
6 Hon. Gonzalo P. Curiel
7 United States District Judge
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