Petition for Writ of Certiorari — Jane Doe, Petitioner v. City of Baton Rouge, Louisiana, et al.

Case: 22-35

10/19/2022, ID: 12568101, DktEnt

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

OCT 19 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JANE DOE,

No.

Plaintiff-Appellant,

y.

CITY OF BATON ROUGE; et al.,

22-35572

D.C. No. 6:21-cv-00314-AA

District of Oregon,

Eugene

ORDER

Defendants-Appellees.

Before: SILVERMAN, IKUTA, and MILLER, Circuit Judges.

Upon a review of the record, appellant’s motion for summary reversal, and

the responses thereto, we conclude this appeal is frivolous. We therefore deny

appellant’s motion to proceed in forma pauperis (Docket Entry No. 9), see 28

U.S.C. § 1915(a), and dismiss this appeal as frivolous, pursuant to 28 U.S.C.

§ 1915(e)(2) (court shall dismiss case at any time, if court determines it is frivolous

or malicious).

All other pending motions are denied as moot.

No further filings will be considered in this closed case.

DISMISSED.

at/MOATT

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JANE DOE,

Civ. No. 6:21-cv-00314-AA

Plaintiff,

OPINION & ORDER

v.

THE CITY OF BATON ROUGE, et al.,

Defendants.

AIKEN, District Judge.

This case comes before the Court on Motions to Dismiss filed by numerous

Defendants. ECF Nos. 181, 185, 193, 199, 211, 213, 215, 221, 223, 251, 254, 257, 264,

267, 269, 274, 279, 286, 288, 293, 311, 321, 342. The Court concludes that this matter

is proper for resolution without oral argument.

LR 7-l(d)(l).

For the reasons

discussed below, this case is DISMISSED.

LEGAL STANDARDS

Parties may move to dismiss an action for improper venue under Federal Rule

of Civil Procedure 12(b)(3). 28 U.S.C. § 1406(a) provides that a “district court of a

district in which is filed a case laying venue in the wrong division or district shall

dismiss, or if it be in the interest of justice, transfer such case to any district or

division in which it could have been brought.” 28 U.S.C. § 1391(b) defines when venue

is proper and allows a plaintiff to bring a civil action in:

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(1) a judicial district in which any defendant resides, if all defendants

are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred, or a substantial part

of the property that is the subject of the action is situated; or

(3) if there is no judicial district in which an action may otherwise

be brought as provided in this section, any judicial district in

which any defendant is subject to the court’s personal jurisdiction

with respect to such action.

Courts should look to the categories of § 1391(b) to determine if venue that has

been challenged is proper. Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist.

of Tex., 571 U.S. 49, 55-56 (2013). If the case falls into one of the three categories of

§ 1391(b), venue is proper. Id. at 56. If the case does not fall into one of the three

categories, “venue is improper, and the case must be dismissed or transferred under

§ 1406(a).” Id.

DISCUSSION

The allegations of the voluminous and disjointed First Amended Complaint

(“FAC”), ECF No. 115, will not be reproduced here except as necessary.

Several of the moving Defendants have challenged the propriety of the District

of Oregon as the venue for this action by filing motions under Rule 12(b)(3). None of

the Defendants are residents of Oregon and venue is not proper under § 1391(b)(1).

Under § 1391(b)(2), venue is proper if a substantial part of the events or omissions

giving rise to the claims occurred in the district. Despite Plaintiffs arguments to the

contrary in her over-long response briefs, essentially every complained-of act occurred

in Louisiana. The only connection this case has to Oregon is that Plaintiff moved

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here and alleges that she is still subject to the conspiracy among the Defendants.

Venue is not proper in Oregon under § 1392(b)(2).

And finally, under § 1391(b)(3), if no district exists in which an action may be

brought, venue is proper in any judicial district in which any defendant is subject to

the court’s personal jurisdiction. In this case, venue would be proper in the United

States District Court for the Middle District of Louisiana under § 1392(b)(2) and so

the Court need not reach the question of personal jurisdiction over the various

Defendants or the other defects in the FAC.

Plaintiff did, in fact, litigate her claims in the Middle District of Louisiana and

the case was dismissed on the merits shortly before Plaintiff filed this action in the

District of Oregon. Doe v. City of Baton Rouge, CIVIL ACTION NO. 20-CV-514-JWDEWD, 2021 WL 304392 (M.D. La. Jan. 29, 2021). Dismissal, rather than transfer, is

the proper remedy when a plaintiff seeks to bring her action in the wrong forum after

losing an action on similar claims in the proper forum. King v. Russell, 963 F.2d 1301,

1304-05 (9th Cir. 1992); see also Wood v. Santa Barbara Chamber of Commerce, Inc.,

705 F.2d 1515, 1523 (9th Cir. 1983) (“Justice would not be served by transferring

Wood’s claims back to a jurisdiction that he purposefully sought to avoid through

blatant forum shopping.”).

The Court concludes that venue is not proper in this action. Because Plaintiffs

claims were resolved on the merits in a prior action in the Middle District of

Louisiana, the Court concludes that it would not be in the interests of justice to

transfer this case to that District and concludes dismissal is the appropriate remedy.

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CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ motions to

dismiss for improper venue and this case is DISMISSED. All other pending motions

are denied as moot. Final judgment shall be entered accordingly.

It is so ORDERED and DATED this

18th

day of March 2022.

/s/Ann Aiken

ANN AIKEN

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JANE DOE,

Civ. No. 6:21-cv-00314-AA

Plaintiff,

JUDGMENT

v.

THE CITY OF BATON ROUGE, et al.,

Defendants.

AIKEN, District Judge.

For the reasons set forth in the accompanying Order, this case is DISMISSED

without prejudice.

It is so ORDERED and DATED this

18th

day of March 2022.

/s/Ann Aiken

ANN AIKEN

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JANE DOE,

Civ. No. 6:21-cv-00314-AA

Plaintiff,

OPINION & ORDER

v.

THE CITY OF BATON ROUGE, et al„

Defendants.

AIKEN, District Judge.

This case comes before the Court on Plaintiffs Rule 60(b) and Rule 59(e)

Motion for Relief from Judgment and Leave to Amend the Complaint. ECF No. 429.

The Court concludes that this matter is proper for resolution without oral argument.

LR 7-l(d)(l). For the reasons discussed below, Plaintiffs Motion is DENIED.

DISCUSSION

Plaintiff seeks to set aside the Court’s Order of Dismissal and Judgment, ECF

Nos. 422, 423, pursuant to Rule 60(b) and Rule 59(e) and seeks to file an amended

complaint in this action.

Under Rule 59(e), a party may move “to alter or amend a judgment” within 28

days of its entry. Fed. R. Civ. P. 59(e). A motion for reconsideration under Rule 59(e)

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

conservation of judicial resources.” Kona Enters., Inc. u. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000) (internal quotation marks and citations omitted). A district

court may grant a Rule 59(e) if it is presented with “newly discovered evidence,

committed clear error, or if there is an intervening change in the controlling law.”

389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). This standard

presents a “high hurdle” for a litigant seeking reconsideration under Rule 59(e).

Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001).

Federal Rule of Civil Procedure 60(b) provides that a court “may relieve a party

or its legal representative from a final judgment, order, or proceeding” based on (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, misrepresentation, or misconduct by an

opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released,

or discharged; or (6) “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). “A

motion for reconsideration is not a vehicle to reargue the motion or to present

evidence which should have been raised before.” United States v. Westlands Water

Dist., 134 F. Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal quotation marks and

citation omitted). “To succeed, a party must set forth facts or law of a strongly

convincing nature to induce the court to reverse its prior decision.” Id.

Here, Plaintiff asserts that there is newly discovered evidence that “strongly

affects jurisdictional considerations including venue based on which the Plaintiffs

legal action has been dismissed.” PI. Mot. 2. Plaintiff contends that “most” of the

evidence “has become known and apparent to Plaintiff in March 2022.” Id. at 4.

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Plaintiff does not identify this newly discovered evidence, other than vague allusions

to being “attacked by the chemical weapons and toxins,” and being unable to access

an unidentified medical procedure. Doe Decls. ECF Nos. 430, 443. Plaintiffs asserts

that she discovered this information in March 2022, although Plaintiff offers only her

own conclusory statement to support this claim.

As noted, Rule 59(e) represents an extraordinary remedy which is to be granted

only sparingly.

Plaintiffs conclusory motion and declarations fall well short of

meeting the “high hurdle” she must clear to achieve relief under Rule 59(e). With

respect to Rule 60(b)(2), the moving party must show “that the evidence (i) is newly

discovered; (ii) could not have been discovered through due diligence; and (iii) is of

such a material and controlling nature as will probably change the outcome.” United

States v. Tanoue, 165 F.R.D. 96, 97 (D. Haw. 1995).

Plaintiffs motion and

declarations describe the “newly discovered evidence” in the vaguest terms, without

showing that it could not have been discovered earlier or that the evidence of a

material or controlling nature. The Court concludes that Plaintiff has failed to meet

her burden under Rule 60(b)(2). Plaintiffs motion does not address any of the other

grounds for reconsideration or relief from judgment and the Court finds that Plaintiff

does not meet the requirements of those sections.

To the extent that Plaintiff seeks leave to amend, Plaintiff has not supplied the

Court with a proposed amended complaint. LR 15-l(d)(l). Nor does Plaintiff describe

the proposed amendments. LR 15-l(c). Without such information, the Court is

unable to assess the propriety of allowing the proposed amendments, even if Plaintiff

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had met the requirements for reconsideration or the setting aside of the judgment

under Rules 59(e) or 60(b). See Lindauer v. Rogers, 91 F.3d 1355,1357 (9th Cir. 1996)

(holding “a motion to amend the complaint can only be entertained if the judgment is

first reopened under a motion brought under Rule 59 or 60.”)CONCLUSION

For the reasons set forth above, Plaintiffs Motion, ECF No. 429, is DENIED.

Defendant Liggett Vector Brands, LLC’s Motion for Joinder in Responses from

Defendants Oppositions to Plaintiffs Motion for Relief from Judgment, ECF No. 435,

is GRANTED.

It is so ORDERED and DATED this

22nd

day of June 2022.

/s/Ann Aiken

ANN AIKEN

United States District Judge

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