Emert v. Schuck ( 2024 )

1 NOT FOR PUBLICATION 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 R obert EMERT, Case No.: 24-cv-0002-AGS-AHG 6 Plaintiff, ORDER DENYING MOTION FOR 7 v. RECONSIDERATION (ECF 11) AND REVOKING PLAINTIFF’S IFP 8 Andrea SCHUCK, et al., STATUS 9 Defendants. 10 11 This Court previously granted permission for plaintiff Robert Emert to proceed in 12 forma pauperis, but dismissed his civil-rights lawsuit without leave to amend. (ECF 10, 13 at 1.) Emert then moved for reconsideration while also appealing to the Ninth Circuit Court 14 of Appeals. (ECF 11, 12.) The Ninth Circuit asked this Court to assess whether Emert’s in 15 forma pauperis status should continue on appeal or be revoked. (ECF 15, 16.) 16 DISCUSSION 17 A. Motion for Reconsideration 18 Emert’s theory of reconsideration is “fraud on the court” under Federal Rule of Civil 19 Procedure 60(b)(3). (ECF 11, at 2.) Courts may grant reconsideration when a losing party 20 provides “clear and convincing evidence” that its opponents have engaged in “fraud, 21 misrepresentation, or other misconduct.” De Saracho v. Custom Food Mach., Inc., 22 206 F.3d 874, 880 (9th Cir. 2000) (cleaned up); see Fed. R. Civ. P. 60(b)(3). The party 23 seeking reconsideration must show that the fraud was “materially related to the submitted 24 issue” and was not “discoverable by due diligence before or during the proceeding.” Pacific 25 & Arctic Ry. & Navigation Co. v. United Transp. Union, 952 F.2d 1144, 1148 26 (9th Cir. 1991). 27 These last two requirements are fatal for Emert’s reconsideration hopes. First, the 28 alleged frauds are not newly discovered. They were well known and extensively discussed 1 in the earlier proceedings. That is, the “tainted plea deal and resulting orders” that Emert 2 now claims defrauded this Court were a key focus of his complaint. (See ECF 11, at 5; see 3 generally ECF 1.) Second, these purported frauds are not “materially related to the 4 submitted issue.” See Pacific & Arctic Ry., 952 F.2d at 1148. This Court dismissed Emert’s 5 complaint because: (1) he failed to plausibly allege “how Balerio violated his constitutional 6 rights”; (2) he failed to plausibly allege how his ex-wife or ex-lawyer were “acting under 7 color of state law”; and (3) a § 1983 claim does not offer the relief he requests, that is, 8 “specific performance” of an alleged custody arrangement. (See ECF 10, at 3, 5.) Even if 9 Emert established the frauds he asserts by clear and convincing evidence, it would not 10 change the legal analysis of those three issues. Thus, there is no basis for reconsideration 11 under Rule 60(b)(3). Emert’s complaint was properly dismissed. 12 B. Revocation of IFP Status 13 Because Emert lacks any good-faith basis for his appeal of the dismissal order, he 14 cannot maintain his IFP status. Appeals taken “in good faith” generally inherit a district 15 court’s IFP ruling. See Fed. R. App. P. 24(a)(3)(A); 28 U.S.C. § 1915(a)(3). But parties 16 must present at least one non-frivolous issue or claim to justify that critical “good faith” 17 finding. See Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). Emert 18 presents none. 19 Courts “often revoke IFP status when a plaintiff’s claim faces an obstacle that simply 20 cannot be overcome.” Allen v. Diaz, No. 20-CV-1389 JLS (MDD), 2023 WL 6593834, 21 at *3 (S.D. Cal. Sept. 5, 2023). As this Court previously explained, the remedy Emert 22 seeks—“‘specific performance’ of the alleged plea agreement so he can gain physical 23 custody of his son”—is not possible in a lawsuit under 42 U.S.C. § 1983. (See ECF 10, 24 at 5–6.) Emert has later suggested that he could instead seek “a declaratory judgment that 25 the plea was fraudulently induced and constitutionally involuntary.” (ECF 11, at 13.) But 26 this remedy, too, is impossible in a § 1983 suit. Declaratory relief that necessarily implies 27 “the invalidity of the punishment imposed, is not cognizable under § 1983.” Edwards v. 28 Balisok, 520 U.S. 641, 648 (1997). I CONCLUSION 2 Emert’s motion for reconsideration is DENIED. This Court certifies that Emert’s 3 ||“appeal is not taken in good faith” and thus revokes his IFP status. See Fed. R. 4 || App. P. 24(a)(3)(A). 5 ||| Dated: November 12, 2024 , ee 7 Andrew G. Schopler United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3