Seeley v. Portland Public Schools - School Board

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

THERESA SEELEY, Case No. 3:23-cv-386-SI

Plaintiff, ORDER

v.

PORTLAND PUBLIC SCHOOLS, EILIDH

LOWERY, GUADALUPE GUERRERO,

GENEVIEVE ROUGH, LIGENA HEIN,

GALEN WALDREP, JAMES YOUNG,

ONDRA MATTHEWS, and SEAN

MURRAY,

Defendants.

Theresa Seeley, Portland, OR, pro se.

Michael Porter, P.C. and Eden E. Vasquez, MILLER NASH LLP, 111 SW Fifth Avenue,

Suite 3400, Portland, OR 97204. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiff Theresa Seeley, representing herself, brought six claims1 against Portland Public

Schools (PPS), a former PPS board member, and six PPS employees (collectively, Defendants).

On August 16, 2023, the Court granted Defendants’ Motion to Dismiss Plaintiff’s Complaint,

1 Plaintiff did not explicitly allege six distinct claims. Defendants, however, described in

their Motion to Dismiss what they understood to be Plaintiff’s six claims. In her response to that

motion, Plaintiff did not dispute Defendants’ characterization of her claims. The Court construed

Plaintiff’s claims accordingly in its Order granting Defendants’ Motion to Dismiss, and in none

of Plaintiff’s subsequent filings has she disputed that characterization.

giving Plaintiff leave to file an amended complaint within 30 days (i.e., by September 15th).

ECF 46 (Order of Dismissal). The Court stated that if Plaintiff failed timely to file an amended

complaint, the Court would dismiss this action without prejudice. ECF 46 at 22-23. Plaintiff did

not file an amended complaint by September 15th or move the court for an extension of time to

do so. Accordingly, on September 29th, the Court entered a Judgment dismissing this case

without prejudice. ECF 53.

On October 10, 2023, Plaintiff filed a Motion [for] Reconsideration of Dismissal Order

and Motion for Extension of Time to File Amended Complaint (ECF 54) (Motion for

Reconsideration). Plaintiff characterizes her Motion for Reconsideration as one for

“Reconsideration of Dismissal Order,” but Plaintiff does not dispute that the Court properly

dismissed her claims as those claims were set forth in Plaintiff’s original Complaint. Rather, she

seeks reconsideration only of the Court’s September 29th Judgment dismissing this case:

Plaintiff moves the Court for leave to file an amended complaint; seeks reconsideration based on

her “error of timely response” in failing to file an amended complaint by the September 15th

deadline; and attaches a draft amended complaint.2 Accordingly, the Court construes Plaintiff’s

motion as one seeking reconsideration of the Court’s entry of Judgment.

On the same day Plaintiff filed her Motion for Reconsideration, she also filed a Motion

for Partial Summary Judgment (ECF 55), a Motion for Reconsideration of Motion for Discovery

(ECF 56), a Request for Extension of Time to Appeal Order to Dismiss (ECF 57), and a

document titled “Plaintiff’s Memorandum: Reconsideration-Appointment of Attorney for

2 Plaintiff asks the court to “turn [sic] the dismissal order [of] 10/2/2023 and reopen the

case.” The Court’s Order of Dismissal was entered on August 16th, and the Court did not take

any action on October 2nd; Plaintiff most likely intends to reference the Court’s entry of

Judgment on September 29th.

Plaintiff,” (ECF 58), which the Court construes as a motion for reconsideration of the Court’s

Order denying Plaintiff’s Motion for Appointment of Pro Bono Counsel. See ECF 3 (Motion for

Appointment of Pro Bono Counsel); ECF 10 (Order).

For the reasons explained below, the Court denies Plaintiff’s Motion for Reconsideration

and denies as premature Plaintiff’s Request for Extension of Time to Appeal Order to Dismiss.

Because the Court denies Plaintiff’s Motion for Reconsideration, it denies as moot the three

remaining motions.

ANALYSIS

A. Legal Standards

1. Motion for Reconsideration

The Federal Rules of Civil Procedure do not explicitly discuss motions for

reconsideration. Allen v. Nw. Permanente, P.C., 2012 WL 5996935, at *1 (D. Or.

Nov. 30, 2012). Two rules, however, contemplate situations in which a court may revisit a prior

decision and order it amended, rescinded, or reversed. After a court has entered final judgment, a

party may seek relief from that judgment “under either Federal Rules of Civil Procedure 59(e)

(motion to alter or amend a judgment) or Rule 60(b) (relief from judgment).” Sch. Dist. No. 1J v.

ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993); see also In re Arrowhead Ests. Dev. Co., 42

F.3d 1306, 1311 (9th Cir. 1994) (court reviewing denial of motion for reconsideration under both

Rule 59(e) and Rule 60(b) when party appealing denial of motion for reconsideration did not

specify which rule supported the motion).

Rule 60(b) governs reconsideration of “a final judgment, order, or proceeding” of the

district court. That rule allows a district court to relieve a party from a final judgment, order, or

proceeding for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence . . . ; (3) fraud . . . by an opposing party; (4) the judgment is void;

(5) the judgment has been satisfied . . . or (6) any other reason that justifies relief.” Fed. R. Civ.

P. 60(b). In evaluating “excusable neglect,” courts in the Ninth Circuit undertake an “equitable

determination that involves consideration of the four Pioneer factors.” Pincay v. Andrews, 389

F.3d 853, 856 (9th Cir. 2004) (en banc) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P’ship, 507 U.S. 380 (1993)); see also Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381

(9th Cir. 1997) (adopting the Pioneer test for consideration of Rule 60(b) motions.) Those factors

are: “(1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential

impact on judicial proceedings, (3) the reason for the delay, including whether it was within the

reasonable control of the movant, and (4) whether the moving party’s conduct was in good

faith.” Pincay, 389 F.3d at 855.. In evaluating excusable neglect, a court must consider “all

relevant circumstances.” Pioneer, 507 U.S. at 395. The party making the Rule 60(b) motion

bears the burden of proof. See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992).

Under Rule 59(e), a court has discretion to alter or amend a judgment if: (1) it is

presented with newly discovered evidence; (2) it committed clear error or made an initial

decision that was manifestly unjust; or (3) there is an intervening change in controlling law.

Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011). “A motion for reconsideration under

Rule 59(e) should not be granted, absent highly unusual circumstances, unless the district court is

presented with newly discovered evidence, committed clear error, or if there is an intervening

change in the controlling law.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)

(emphasis in original) (quotation marks omitted). A motion under Rule 59(e) must be filed

within 28 days of the entry of judgment. Fed. R. Civ. P. 59(e).

When a party moves for reconsideration based on new evidence, the court applies the

same test whether the motion is brought under Rule 59(e) or Rule 60(b). Jones v. Aero/Chem

Corp., 921 F.2d 875, 878 (9th Cir. 1990). “Under this test the movant must show the evidence

(1) existed at the time of the [original decision], (2) could not have been discovered through due

diligence, and (3) was of such magnitude that production of it earlier would have been likely to

change the disposition of the case.” Id. (quotation marks omitted).

Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of

finality and conservation of judicial resources.” Kona Enters., Inc. v. Est. of Bishop, 229

F.3d 877, 890 (9th Cir. 2000) (quotation marks omitted); see also Shalit v. Coppe, 182 F.3d

1124, 1132 (9th Cir. 1999) (noting that “reconsideration is appropriate only in very limited

circumstances”). “[M]otions for reconsideration are not the proper vehicles for rehashing old

arguments and are not intended to give an unhappy litigant one additional chance to sway the

judge.” Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 670 (D. Nev. 2013) (alteration in original)

(quoting Cheffins v. Stewart, 2011 WL 1233378, at *1 (D. Nev. Mar. 29, 2011)). A motion for

reconsideration also “may not be used to raise arguments or present evidence for the first time

when they could reasonably have been raised earlier in the litigation.” Carroll v. Nakatani, 342

F.3d 934, 945 (9th Cir. 2003).

2. Time to Appeal

Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure requires a party in a civil

case to file a notice of appeal with the district court clerk “within 30 days after entry of the

judgment or order appealed from.” The Court of Appeals will lack jurisdiction to decide the

appeal if the moving party fails to timely file a notice of appeal. See Washington v. Ryan, 833

F.3d 1087, 1098 (9th Cir. 2016) (“The filing deadline in Rule 4(a)(1) is mandatory and

jurisdictional.”); Melendres v. Maricopa County, 815 F.3d 645, 647 (9th Cir. 2016) (holding

same (citing 28 U.S.C. § 2107)3). Under Rule 4(a)(4)(A), however, the time to file an appeal will

run “from the entry of the order disposing of the last” of specified “remaining motion[s].” Such

motions include a motion for relief filed under Rule 60 of the Federal Rules of Civil Procedure

within 28 days of the entry of judgment, or a timely filed motion to alter or amend a judgment

filed under Rule 59.

B. Application

1. Motion for Reconsideration under Rule 60(b) and Rule 59(e)

Plaintiff seeks relief under Rule 60(b) and Rule 59(e), asserting excusable neglect, fraud,

and newly discovered evidence.4

a. Rule 60(b)

i. Excusable Neglect

Arguing that her delay was the result of excusable neglect, Plaintiff states that she

suffered from escalating “medical conditions,” experienced “technological issues,” and had

“time-limits due to limited access to computer and research technology,” in part because of the

limited hours of the public library. Plaintiff also asserts “discovery of new evidence” that

requires adding “information . . . into the amended complaint [that is] complex and span[s]

3 Although not relevant for the purposes of this Order, the Supreme Court has since

clarified that not every provision of Rule 4(a) is jurisdictional. See Hamer v. Neighborhood

Hous. Servs. of Chi., 583 U.S. 17 (2017) (holding that the time limit set forth in Rule 4(a)(5)(C),

which adds a time limit not included in 28 U.S.C. § 2107(c), is not jurisdictional).

4 Plaintiff also seeks relief based on an assertion of inadvertence, but she does not provide

any facts to support that assertion.

multiple legal areas,” and she asserts that the changes would be “difficult to complete with the

limited resources available to [Plaintiff].”5

The Court finds that the first, second, and fourth Pioneer factors do not weigh strongly in

favor of or against granting Plaintiff’s motion. As for the first factor (danger of prejudice) and

second factor (length of delay and its potential impact on judicial proceedings), the Ninth Circuit

has explained that mere delay and the disadvantage inherent to a defendant who loses a “quick

victory” are insufficient, standing alone, to justify denial of relief under Rule 60(b)(1). See

Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224-25 (9th Cir. 2000). Regarding the third factor

(whether the moving party’s conduct was in good faith), the Court also sees no basis for finding

that Plaintiff acted with anything less than good faith. Cf. id. at 1225.

As for the third factor (“the reason for the delay, including whether it was within the

reasonable control of the movant”), the Court finds that the reasons Plaintiff gives for her delay

are inadequate to support relief under Rule 60(b). Plaintiff not only failed to file an amended

complaint within 30 days but also did not move for an extension of the September 15th deadline

during the six-week period between entry of the Order of Dismissal and entry of Judgment.6 That

is so despite the fact that on August 31st—approximately two weeks after the Court issued its

Order of Dismissal and two weeks before Plaintiff’s deadline to file an amended complaint—the

Court issued an order that referenced the timeline set by the Court for Plaintiff to file her

5 Plaintiff attaches to her Motion for Reconsideration a draft Amended Complaint

(ECF 54-1); it is unclear whether she intended to make further changes to that draft Amended

Complaint.

6 Plaintiff twice filed motions for extension of time in this case; the Court granted the first

motion and denied the second as moot. See ECF 24 (Plaintiff’s motion), 26 (Order granting

Plaintiff’s motion); ECF 31 (Plaintiff’s motion), ECF 46 (Order denying Plaintiff’s motion as

moot).

amended complaint. Yet Plaintiff filed nothing with the Court during the nearly two months after

the Court issued its Order of Dismissal. The reasons Plaintiff gives to support her assertion of

“excusable neglect,” even when considered together, do not explain her failure even to seek an

extension of time.7 In sum, Plaintiff has failed to establish excusable neglect that would render

this this one of the “very limited circumstances” in which the “extraordinary remedy” of

reconsideration is warranted. See Shalit, 182 F.3d at 1132; Kona, 229 F.3d at 890.

ii. Fraud

Plaintiff also argues reconsideration is warranted based on purported “fraud” in the form

of “deliberately concealed evidence.” Plaintiff does not explain in her Motion for

Reconsideration the specific basis for her conclusion that the evidence was “deliberately

concealed.” Thus, to the extent that Plaintiff argues that Defendants have committed fraud under

Rule 60(b)(3), she has not met her burden of proving fraud by “clear and convincing evidence.”

See Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (applying “clear and

convincing standard” to claims of fraud under Rule 60(b)(3) and concluding that “discovery

recalcitrance does not constitute fraud”); see also 11 CHARLES A. WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2860 (3d ed., updated Apr. 2023) (collecting cases).

7 The Court acknowledges that under the third Pioneer factor, a court might find

excusable neglect based on a party’s assertions of medical issues. Plaintiff’s statement of

“medical conditions escalating,” however, is too conclusory to support relief under Rule 60(b).

See Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988) (noting that “simple assertions that

the movant has a meritorious defense are . . . insufficient to justify upsetting the underlying

judgment” (cleaned up)); Weinstein v. Lewis, 34 F.3d 1075, 1994 WL 424342 at *1 (9th

Cir. 1994) (unpublished) (applying Cassidy’s standard to factual allegations made in support of

any Rule 60(b) motion); United States v. Reyes, 307 F.3d 451, 457 (6th Cir. 2002) (upholding

district court’s denial of Rule 60(b) motion where movant’s counsel provided “a vague

explanation” for delay); United States v. Matta-Lopez, 12 F. App’x 566, 567 (9th Cir. 2001)

(upholding district court’s finding of no excusable neglect where the defendant’s counsel “failed

to describe with factual specificity” the difficulty in communicating with his client, offering only

“conclusory” statements).

iii. Newly Discovered Evidence

To obtain relief based on an assertion of newly discovered evidence, Plaintiff must show

that the evidence is “of such magnitude that production of it earlier would have been likely to

change the disposition of the case.” See Jones, 921 F.2d at 878 (quotation marks omitted).

Plaintiff states that she recently discovered “concealed evidence,” but she does not explain in her

Motion for Reconsideration what, specifically, the purportedly concealed evidence is: Plaintiff

references only a discovery of “unpaid employer pension and employer social security taxes.” In

her Reply, Plaintiff mentions “receipt of a tax transcript” that purportedly reveals

“discrepancies” and “mistakes,” and she asserts that the “new evidence” shows “collusion”

between state agencies “to deny the plaintiff all funds otherwise due at retirement.”

It appears that Plaintiff believes the evidence supports allegations relevant to her claim

for breach of contract. But the Court dismissed that claim for lack of jurisdiction, finding that the

Employment Relations Board has exclusive jurisdiction over the alleged breaches (e.g., that PPS

failed to remit its share of pension funds to the Public Employees Retirement System (PERS),

falsified Plaintiff’s salary as relevant to her pension benefits, and failed to provide Plaintiff with

severance benefits). In other words, this Court cannot adjudicate that claim, no matter what

evidence Plaintiff provides. Plaintiff does not explain how the “new evidence” might overcome

the Court’s conclusion that only the Employment Relations Board may resolve Plaintiff’s breach

of contract claim.8 Nor does Plaintiff explain how any of the newly discovered evidence would

otherwise alter the bases for the Court’s dismissal of the other claims in Plaintiff’s Complaint.

8 To the extent Plaintiff raises a new claim against PERS or its Board, the Court notes

that PERS is a wholly separate entity from PPS.

Finally, Plaintiff has not clearly explained how the purported new evidence might be

relevant to any new claim that would survive dismissal where her other claims did not. In sum,

Plaintiff has not satisfied her burden to show that any “newly discovered evidence” was “of such

magnitude that production of it earlier would have been likely to change the disposition of the

case.” See Jones, 921 F.2d at 878.9

b. Rule 59(e)

Plaintiff also fails to meet her burden to obtain relief under Rule 59(e). For the reasons

discussed above, she has failed to satisfy her burden to obtain relief under either Rule 60(b) or

Rule 59(e) based on her assertions of newly discovered evidence. In addition, she has pointed to

no clear error or manifest injustice, has not identified any relevant “intervening change in

controlling law,” see McDaniel, 656 F.3d at 998, and has not shown “highly unusual

circumstances” that justify granting relief under Rule 59(e), see McDowell, 197 F.3d at 1255.

2. Request for Extension of Time to Appeal

As noted, Plaintiff also filed a “Request for Extension of Time to Appeal Order to

Dismiss.” The Court’s Order of Dismissal, however, is not a final appealable order. See, e.g.,

WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (explaining that when

an order granting a motion to dismiss is without prejudice and with leave to amend, it is not

a final appealable order). “A final judgment must be obtained before the case becomes

9 Plaintiff does not specifically invoke the “catchall” provision of Rule 60(b), under

which a defendant may seek relief “from a final judgment, order, or proceeding for . . . any . . .

reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). To obtain relief under that provision a party

must “make a threshold showing of ‘extraordinary circumstances.’” Ybarra v. Filson, 869 F.3d

1016, 1023 (9th Cir. 2017) (recursively quoting Gonzales v. Crosby, 545 U.S. 524, 535 (2005)).

Plaintiff has not shown “extraordinary circumstances.”

appealable.” Id. at 1137. If Plaintiff seeks an extension of time to appeal the Court’s August 16th

Order of Dismissal, her motion is therefore denied.

To the extent that Plaintiff seeks an extension of time to appeal the Court’s entry of

Judgment on September 29, 2023, her motion is unnecessary. Rule 4(a)(1)(A) of the Federal

Rules of Appellate Procedure requires a party in a civil case to file a notice of appeal with the

district court clerk “within 30 days after entry of the judgment or order appealed from,” but

Plaintiff’s filing of her Motion for Reconsideration triggered exceptions to that deadline. Under

Rule 4(a)(4)(A), the time to file an appeal will run “from the entry of the order disposing of the

last” of several specified “remaining motion[s]” that may include a timely filed motion to alter or

amend a judgment under Rule 59 of the Federal Rules of Civil Procedure, or a motion for relief

under Rule 60 filed within 28 days of the entry of judgment. Plaintiff’s Motion for

Reconsideration was timely under Rules 59 and 60 and thus falls within both exceptions. If

Plaintiff wishes to appeal the Court’s September 29th Judgment, she therefore has 30 days from

entry of this Order to do so. Accordingly, the Court denies as premature Plaintiff’s Request for

Extension of Time to Appeal Order to Dismiss.10

CONCLUSION

The Court DENIES Plaintiff’s Motion for Reconsideration (ECF 54) and DENIES as

premature Plaintiff’s Request for Extension of Time to Appeal Order to Dismiss (ECF 57).

Because the Court denies Plaintiff’s Motion for Reconsideration, the Court DENIES AS MOOT

Plaintiff’s Motion for Partial Summary Judgment (ECF 55), Plaintiff’s Motion for

10 Defendants ask the Court to institute a prefiling order prohibiting Plaintiff from filing

any motions without leave of the Court. Because this case is closed and Plaintiff has 30 days to

file her Notice of Appeal, the Court declines to do so at this time.

Reconsideration of Motion for Discovery (ECF 56), and Plaintiff’s motion for reconsideration

for appointment of pro bono counsel (ECF 58).

IT IS SO ORDERED.

DATED this 13th day of December, 2023.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge