Government Liability Update

Pre-Verdict JMOL Motion Based on Argument of Reasonable Force Did Not Waive Post-Verdict JMOL Motion Arguing Qualified Immunity, Where Factual Arguments Were the Same and There Was Earlier MSJ on Qualified Immunity

In Estate of Najera-Aguirre v. City of Riverside, published March 11, 2025, the 9th Circuit affirmed a judgment against a police officer for use of excessive force entered after a jury trial, and the district court's denial of judgment as a matter of law.  The defendant police officer arrived at the scene after receiving a report of someone destroying property with a bat-like object.  The officer commanded the decedent to drop the bat he was holding.  The decedent refused and walked toward the officer.  When the decedent was 10-15 feet from the officer, the officer pepper-sprayed the decedent.  The pepper spray blew away, and was ineffective.  The decedent turned toward the officer, still holding the bat.  They stood face-to-face, still 10-15 feet apart.  Without giving a warning, the officer pointed his gun at the decedent and fired six shots in two volleys.  The decedent collapsed face down.  His body was approximately 10 feet from where the officer was standing.  An autopsy suggested the decedent was turned away, with his back to the officer when the fatal bullets hit.  The decedent's children sued the officer.  The district court denied summary judgment based on qualified immunity, which the 9th Circuit affirmed in a published decision.  A jury found for the plaintiffs and awarded $10 million in damages.  The court denied a pre-verdict motion for judgment as a matter of law based on lack of excessive force.  After judgment, the officer renewed his motion and added an argument he was entitled to qualified immunity.  The district court denied this motion.  The officer appealed that decision.

The 9th Circuit ruled that the officer had preserved his qualified immunity argument.  Although he did not raise qualified immunity in his pre-verdict motion, both were based on the same underlying factual arguments.  Further, he had previously raised the legal argument of whether he violated clearly-established law in his summary judgment motion.  The court then ruled that qualified immunity was properly denied.  Viewing the evidence in the light most favorable to the plaintiffs, and drawing all reasonable inferences in their favor, the officer used deadly force on a suspect who did not pose a threat.  That violated clearly-established law.

 

District Court Lacks Inherent Authority to Impose Presumption Instruction as Sanction for Inadvertent Loss of Electronically-Stored Information

 

In Gregory v. State of Montana, published September 27, 2024, the 9th Circuit Court of Appeals reversed a judgment against the defendant probation officer and state.  There was an altercation between the plaintiff and the officer in the probation office parking lot that ended with the plaintiff’s arrest.  The incident was captured on an external surveillance camera that monitored the parking lot and that was operated by the probation office.Four days after the incident, the plaintiff’s criminal defense attorney contacted the department of corrections to request the parking lot footage.  The person who attempted to provide the footage did not realize that the surveillance footage would be automatically deleted in 17 days.  His various attempts to capture the footage ran into technical difficulties.  He took a cellphone video of the footage and provided that, but it was too poor to make out what it depicted.  The original footage was eventually deleted.  The plaintiff sued the probation officer under 42 U.S.C. Section 1983 for use of excessive force and a state law claim for assault and battery, and sued the state for negligent infliction of emotional distress.  The plaintiff brought a motion for sanctions against the state based on the loss of the parking lot footage.  The court granted the motion in part.  It rejected the plaintiff’s claim for a default judgment, and instead, invoking its inherent authority, the court instructed the jury that the probation officer used unreasonable force in the seizure of the plaintiff; and submit to the jury the issues of causation, damages, and punitive damages.  The cellphone video was played to the jury, but instructed the jury that because the state had failed to preserve the video, the jury was permitted to infer that the lost footage would have been favorable to the plaintiff.  The court instructed the jury that it had been established as a matter of law that the probation officer used excessive force against the plaintiff in violation of the 4th Amendment.  The jury awarded the plaintiff $75,000 in damages, and plaintiff obtained attorney fees.

 

The 9th Circuit ruled that the district court had erred in giving the instruction.  Although district courts have inherent authority to fashion their own sanctions for conduct that abuses the judicial process, that authority can be limited by statute and rule.  FRCP 37(e) has prescribed sanctions for loss of electronically-stored information due to failure to take reasonable steps to preserve it.  The court may order measures no greater than necessary to cure the prejudice.  Only upon finding that the party acted with intent to deprive another party of the information may the district court instruct the jury that it may or must presume the information was unfavorable to the party, dismiss the action, or enter a default judgment.  The sanction here fell within the category of sanctions that may be entered only for intentional conduct.  The rule precludes a district court from resorting to inherent authority to evade its strictures.  The case was remanded for a new trial.

District Court May Order Retrial of Damages Separate from Liability Only Where Issues Not Intertwined; That Newly-Discovered Evidence Would Conclusively Disprove Opponent's Case Does Not Relieve Party of Reasonable Diligence Requirement

In Marroquin v. City of Los  Angeles, published August 27, 2024, the 9th Circuit Court of Appeals affirmed a trial court orders granting partial new trial and denial of a motion for relief from judgment based on newly-discovered evidence.  The plaintiff sued the defendant city and an officer for alleged use of excessive force when the officer allegedly fired a less-lethal round at the plaintiff during a gathering after a basketball championship win.  The officer and the plaintiff disputed whether the officer fired the round at the plaintiff.  At trial, the jury found in the plaintiff's favor on her claims against the officer for excessive force and negligence, and on her negligence claim against the city.  The defendants were found not liable for battery.  The verdict form asked the jury to assess damages against each defendant.  The jury awarded the plaintiff $1.00 in damages against the officer and $1.5 million in damages.  Both sides moved for new trial.  Both agreed the jury acted improperly in apportioning the damages between the city and the officer.  The defendants also filed a renewed motion for judgment as a matter of law.  The district court denied that motion, but agreed that the inconsistent awards were irreconcilable and that damages should be awarded for a single injury, not apportioned between defendants.  The court granted a new trial limited to damages.  Before the second trial, the defendants moved under FRCP 60(b)(2) for relief from judgment based on two "previously undiscovered" surveillance tapes from the sporting venue that, they contended, showed that the officer could not possibly have discharged the round that injured the plaintiff.  The officer declared he discovered the footage when working off-duty providing security for the venue, but did not discover the video until after the trial.  The district court denied the motion on the ground that the defendants failed to show reasonable diligence in discovering the video.

The 9th Circuit agreed with the district court.  Although a district court may grant a new trial or all or some of the issues, the decision to grant a partial new trial is cabined by the 7th Amendment, which prohibits ordering a new trial limited to damages when damages issues are so interwoven with liability issues that the former cannot be submitted to the jury independently of the latter without confusion or uncertainty.   In addition, when a plaintiff seeks punitive or exemplary damages, ordering a partial trial limited to damages is impermissible, because liability issues are necessarily interwoven with damages issues because the damages depend upon the degree of culpability of the defendant.  Further, the issue of liability for intentional infliction of emotional distress is intertwined with the damages issue because the trier of fact can find liability only if it first finds the plaintiff suffered severe emotional distress, and the defendant would be entitled to present evidence that they did not inflict sufficient damages.  Issues may also be intertwined where the jury's mistake in awarding damages tainted the liability finding.  Here, the plaintiff's claim for emotional distress did not depend on the events leading to her injury.  Instead, she sought pain and suffering from her physical injury.  Therefore, the liability issues concerning the officer's conduct were distinct and separable from the emotional distress damages.  Further, the defendants did not identify any evidence showing the jury's improper apportionment of damages tainted the liability finding.  The appellate court agreed with the district court that the jury's confusion on damages was caused by the improper instruction on the verdict form to apportion damages.  The court further held the district court did not abuse its discretion in denying the Rule 60 motion, due to failure to show reasonable diligence.  The court rejected the defendants' argument that there is a "conclusive evidence" exception to the reasonable diligence requirement when new evidence would conclusively disprove the other side's case.

"Counsel Mandate" Bars Non-Attorney Parent from Representing Children's Claims Pro Se

In Grizzell v. San Elijo Elementary School, published August 7, 2024, the 9th Circuit affirmed the district court's dismissal without prejudice of a civil rights case against the defendant school and school district.  The plaintiff enrolled her children in the school under the McKinney-Vento Homeless Assistance Act.  She alleges that the children suffered racial discrimination and harassment, and were ultimately unlawfully unenrolled.  She asserted claims under the Equal Protection and Due Process clauses of the 14th Amendment, Title IV and Title VI of the Civil Rights Act of 1964, and several other federal and state educational laws.  When the plaintiff conceded that the lawsuit only concerns her children's claims, the district court dismissed the action without prejudice because the minors could proceed with their claims only through an attorney licensed to practice in the court.  The plaintiff appealed.

The 9th Circuit panel affirmed.  The "Counsel mandate" requires a non-attorney parent to be represented by counsel in bringing an action on behalf of her child.  The right to proceed pro se under 28 U.S.C. section 1654 does not create a true choice for minors who, under state law, cannot determine their own legal actions, and does not overcome the rule that a non-lawyer has no authority to appear as an attorney for others.  The panel acknowledged the important interests raised by the plaintiff's allegations, and that other circuits have allowed more flexibility in permitting a pro se parent to make a child's case the parent's own.  But the panel viewed itself bound by precedent.

Judge's Review of Certificates and Decision to Allow Childhood Sexual Abuse Claim to Proceed Is Not Determination of Fact for Purposes of CCP Section 170.6

In San Diego Unified School District v. Superior Court (John Doe D.Y.), published May 28, 2024, the Fourth District Court of Appeal, Division 1 issued a writ of mandate directing the trial court to vacate its order denying the real party district's Code of Civil Procedure section 170.6 to the trial court judge.  Code of Civil Procedure section 340.1 requires a plaintiff who is 40 or older at the time of filing a suit for childhood sexual abuse to file a certificate of merit for each defendant, and cannot serve any defendant until the court determines based solely on the certificates that there is reasonable and meritorious cause for filing the action against the defendant.  Further, the plaintiff must name each defendant by fictitious names unless the plaintiff files a certificate of corroborative fact and the court determines, based solely on the certificate and reasonable inferences to be drawn from it, that one or more facts corroborative of one or more of the charging allegations against a defendant has been shown.  By statute, neither certificate is served on the defendant, and are reviewed in camera by the trial court.  The plaintiff filed this action, and it was assigned to a superior court judge.  The superior court entered an order on the plaintiff's ex parte application to serve and name Doe defendants under section 340.1.  The plaintiff then filed an amendment to name the defendant district in place of a Doe defendant, and served the district with the complaint.  When the district filed its first appearance, a request for an automatic extension of the time to demurrer, the district filed a Code of Civil Procedure section 170.6 peremptory challenge to the judge the same day.  The trial court denied the challenge as untimely.  The district petitioned the appellate court for relief,  on the ground that it timely filed the challenge within 15 days of its appearance.  The appellate court issued an order to show cause.  Neither the plaintiff nor the superior court responded.  The district filed a supplemental brief in lieu of reply, arguing a review of section 340.1 certificates is not a “determination of contested fact issues relating to the merits” under section 170.6 that would bar a subsequent section 170.6 challenge.

The appellate court agreed.   Courts narrowly construe what constitutes a determination of contested fact relating to the merits under section 170.6, limiting it to decisions actually on the merits of the case.  The purpose of the certificate of merit is to impose a pleading hurdle to prevent frivolous and unsubstantiated claims.  It is therefore similar to a determination of probable cause in a criminal prosecution.  The defendant ha no opportunity to oppose the certificates and raise conflicting factual contentions.  The certificate determination is therefore comparable to a demurrer or an ex parte request for a temporary restraining order, which are not deemed resolution of disputed facts under section 170.6.  This limited review therefore does not preclude a subsequent section 170.6 challenge.

 

Administrative Agency Decision Does Not Have Claim Preclusive Effect in Federal Court if Agency Lacked Jurisdiction to Decide the Issue in the Federal Case

In Jamgotchian v. Ferraro, published February 26, 2024, the 9th Circuit Court of Appeals reversed the district court's dismissal of the plaintiff's complaint under 42 U.S.C. section 1983.  The plaintiff wished to race a thoroughbred racehorse.  California law requires that all thoroughbreds racing in the state be registered with a private organization, the Jockey Club of New York.  The Jockey Club refused to register the horse, because it concluded the horse's name violated a rule.  When the plaintiff sought to enter the horse in a California race, the stewards of the racecourse denied entry, because the horse was not registered with the Jockey Club.  The plaintiff appealed the stewards' decision to the California Horse Racing Board, a state agency.  Among his claims was that the stewards' enforcement of the Jockey Club registration requirement, prescribed in California Business & Professions Code section 19416, was viewpoint discrimination that was impermissible under the 1st Amendment.  The agency affirmed the stewards' decision.   It also offered commentary on the constitutional claim.  But the agency found that it lacked jurisdiction to decide the constitutional claim, because the California Constitution bars state agencies from declaring a statute unconstitutional or refusing to enforce a statute on constitutional grounds unless an appellate court has made that determination.  The decision advised the plaintiff that a California superior court would have authority to address the constitutional claim.  The plaintiff did not seek review of the decision in a California court via a petition for administrative mandamus.  Instead, he filed this suit against the stewards and the agency members, and presented his constitutional claim.  The district court ruled that the agency had considered the constitutional claims and rejected them; and that because the plaintiff had not sought review of the decision in state court, the agency decision precluded the section 1983 lawsuit.  

The appellate court disagreed.  A state agency decision does not have preclusive effect in federal court unless the state administrative proceeding was conducted with sufficient safeguards to be equated with a state court judgment.  The proceeding must satisfy the requirements of fairness outlined in  United States v. Utah Construction & Mining Co. (1966)384 U.S. 394.  The second prong of the Utah Construction requirements is that the agency resolve disputed issues of fact properly before it.  That prong encompasses disputed issues of law as well.  Only if an agency proceeding satisfies the Utah Construction factors does a court determine whether state law would give the agency decision preclusive effect.  Here, the agency's decision did not meet the second prong of Utah Construction, because the constitutional question at issue in the lawsuit was not "properly before" the agency and the agency therefore did not and could not resolve it.  The agency's extra-jurisdictional thoughts on the constitutional questions were irrelevant.  Because the agency lacked jurisdiction to determine the plaintiff's constitutional claims, the decision did not have preclusive effect.  Past circuit cases had held that where a plaintiff had the opportunity to seek state court review of an administrative agency decision and did not obtain it, the agency's decision could have preclusive effect.  But in those cases, the agency proceedings met the Utah Construction requirements.  Because this proceeding did not, it did not have preclusive effect.

Voluntary Dismissals in State and Federal Court Barred Plaintiff from Refiling in State Court

In Doe v. Marysville Joint Unified School District, published December 21, 2023, a divided panel of the Third District Court of Appeal affirmed dismissal of the plaintiff's lawsuit after demurrer.  A plaintiff filed a suit against the defendant district  in state court, alleging negligence, intentional infliction of emotional distress, sexual harassment, breach of fiduciary duty, constructive fraud, and failure to perform a mandatory duty, based on alleged sexual misconduct.  The district demurred to the action.  The trial court sustained the demurrer with leave to amend on some causes of action and without leave on others.  The plaintiff filed a first amended complaint, then dismissed the action voluntarily, without prejudice.  Other plaintiffs filed a similar lawsuit in state court against the district.  As with the other lawsuit, the court sustained demurrer, with leave to amend as to some causes of action, and the plaintiffs voluntarily dismissed the suit without prejudice.  On the same day the requests for dismissal were entered in the two actions, the plaintiffs in the two suits sued the district in federal district court.  The complaint asserted the causes of action previously alleged in the state court actions, and added causes of action under Title VIII of the federal No Child Left Behind Act of 2001, Title IX, and 42 U.S.C. section 1983.  The school district moved to dismiss the action, asserting 11th Amendment immunity to the federal claims except TItle IX.  The plaintiffs voluntarily dismissed the federal action under FRCP 41(a).  The plaintiffs then filed another state court action against the district.  The complaint asserted causes of action for negligence, negligent hiriing, and negligent supervision.  It did not assert any federal claims.  The district demurred to the complaint on the ground of res judicata.  The trial court sustained the demurrer, ruling that the dismissal in federal court was an adjudication on the merits, and res judicata barred the new lawsuit.

The panel majority agreed.  It ruled that the federal court had subject matter jurisdiction over the plaintiffs' federal lawsuit, because the district was immune under the 11th Amendment.  The district acknowledged in the federal suit that the federal court had jurisdiction over the Title IX claim, which was predicated on the same harm as the other causes of action.  The preclusive effect of a federal court judgment is determined by federal common law.  Where the federal court had federal question jurisdiction, rather than diversity jurisdiction, federal common law requires application of uniform federal rules of res judicata.  FRCP 41(a)(1)(A) allows a plaintiff to voluntarily dismiss a lawsuit without prejudice before a defendant moves for summary judgment.  But FRCP 41(a)(1)(B) provides that if the plaintiff previously dismissed any state or federal action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.  Federal law is that a second voluntary dismissal under FRCP 41(a)(1)(B) is claim preclusive.  Here, the Doe claims constitute a single cause of action, because they are all based on the same alleged harm:  The injury and damages caused by the alleged sexual misconduct.  The majority held that U.S. Supreme Court law dictated that in federal subject matter cases (as opposed to diversity cases) those federal claim preclusion rules should apply to successive dismissals, to avoid forum shopping and inequitable administration of the laws, and prevents unreasonable abuse and harassment by preventing plaintiffs from obtaining numerous dismissals without prejudice.  The court declined to follow Gray v. La Salle Bank, N.A. (2023) 95 Cal.App.5th 932, which held that a second dismissal in a federal court did not preculde filing the same claim in a third action in state court with only state court causes of action.  The majority opined that Gray was contrary to U.S. Supreme Court law.

A dissenting justice opined that state court claim preclusion laws should apply, and should allow the state court action to proceed.

California Public Records Act Does Not Permit Declaratory Relief as to Moot Record Requests, Nor Does It Require Agencies to Retain Records

In City of Gilroy v. Superior Court (Law Foundation of Silicon Valley), published October 23, 2023, the Sixth District Court of Appeal issued writs directing the trial court to vacate its order in a California Public Records Act proceeding.  In 2018, the real party in interest Foundation requested public records from the city concerning homeless encampment sweeps.  The city's response stated in part that the city's law enforcement records concerning the sweep were exempt from disclosure under the CPRA.  It did not provide bodycam footage from officers who participated in sweeps in response to the Foundation's 2018 requests, and did not search for such footage, because the city attorney determined the footage was exempt.  In 2019, when the Foundation discovered that all homeless encampment sweeps are videotaped, the Foundation submitted a request for all video and audio recordings made during sweeps from 2016 to 2019.  It later agreed to limit the request to January 2019 to the present.  The city denied production of the bodycam footage on the ground that it was exempt.  The Foundation stated an intent to petition the court to compel production of the footage.  In response, the city voluntarily placed a litigation hold on the footage to preserve it past the city's one-year retention period.  The city then released bodycam footage from encampment sweeps that did not relate to citations or arrests.  It withheld from disclosure 10 minutes of bodycam footage in which officers issued citations.  The city stated that no other bodycam footage from 2016 to 2019 was in its possession.  The Foundation petitioned the trial court.  The trial court viewed the 10 minutes of withheld footage in camera, and determined it was properly withheld as exempt.  In response to an amended petition, the trial court denied the petition to compel production of footage, and granted declaratory relief, declaring that the city violated the CPRA by conducting an inadequate search in response to the 2018 CPRA requests; that the city had a duty to review the video to determine whether footage was exempt and could be produced, before issuing a blanket exemption, and explain why any withheld records were exempt; and that the city's CPRA response was untimely.  The trial court denied the Foundation's request for a declaration that the city had an obligation to preserve records, and for an injunction preventing the city from destroying any footage for three years after receiving a CPRA request.  Both sides petitioned the appellate court for writ relief.

The appellate court ruled the trial court erred by issuing the declaratory relief.  Once the trial court ruled that the city had provided all nonexempt footage in its possession and had properly withheld exempt records, the Foundation's claims under the CPRA, including its claims regarding the city's responses to past CPRA requests, was moot.  While the trial court had power under the CPRA to issue declaratory relief regarding an agency's obligation to disclose records, neither the CPRA nor the general declaratory relief statute, Code of Civil Procedure 1060, provides for declaratory relief as to moot CPRA claims, or responses to past CPRA claims.  Declaratory relief operates only prospectively and not for redress of past wrongs.  The appellate court rejected the Foundation's petition for a declaration that the city violated the CPRA by failing to preserve past recordings and for an injunction that the city retain recordings for three years.  The CPRA is not a records retention statute.  Other statutes impose particular retention periods for bodycam recordings and other recordings, and the city complied with those statutes.

In Federal Court, a Summary Judgment Motion Preserves Purely Legal Issues for Appeal; They Need Not Be Raised in a Post-Trial Motion

In Dupree v. Younger, published May 25, 2023, the United States Supreme Court reversed a circuit court decision dismissing an appeal.  The plaintiff alleged that while he was being held as a pretrial detainee, three corrections officers assaulted him.  He sued them in federal court under 42 U.S.C. section 1983 for allegedly using excessive force in violation of the Fourteenth Amendment.  One of the officers moved for summary judgment based on his contention that the plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act.  The district court denied the motion, based on its conclusion that the plaintiff had satisfied the exhaustion obligation under the law.  The case proceeded to trial.  The jury found for the plaintiff.  The officer did not file a FRCRP 50(b) post-trial motion.  He appealed a single issue to the Fourth Circuit Court of Appeals:  the district court's rejection of his exhaustion defense at summary judgment.  The Fourth Circuit dismissed the appeal based on its precedent holding that a claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion.

The Supreme Court ruled that a purely legal challenge made and rejected in a summary judgment motion is preserved for appeal, regardless of whether it is renewed in a post-trial motion.  An appeal from final judgment generally permits review of all rulings that led up to the judgment.  Some interlocutory district-court rulings are unreviewable from final judgment, because they are superseded by later developments in the litigation.  For instance, a sufficiency-of-the-evidence made at the summary judgment stage and rejected is superseded by the complete trial record.  A party must therefore raise a sufficiency-of-the-evidence claim in a post-trial mtion to preserve it for appeal.  The Supreme Court declined to apply this rule to pure questions of law.  Trials leave pretrial legal rulings undisturbed.  Trials resolve the facts, not the law.  A district court's purely legal conclusions at summary judgment are not superseded by later developments in the litigation.  Instead, they follow the general rule and merge into the final judgment.  They are therefore reviewable on appeal.  The court did not decide whether the exhaustion issue raised in this case was a purely legal issue.

Plaintiff's Statute of Limitations for Filing State Court Lawsuit against Public Entity Was Not Tolled by FRCP 60(b)(6) Motion

In Feliz v. County of Orange, published May 19, 2023, the Fourth District Court of Appeal, Division 3 affirmed the dismissal, after demurrer, of the plaintiff's lawsuit.  In August 2010, the plaintiff's decedent committed suicide in a county jail.  The plaintiff presented a timely claim to the county, which was denied by operation of law.  In November 2010, the plaintiff sued the county in federal district court, alleging federal claims and a state law wrongful death claim.  The district court granted summary judgment on the federal claim, and declined to exercise supplemental jurisdiction over the state law claim, dismissing it.  The plaintiff appealed, and the 9th Circuit reversed and remanded the ruling.  On remand, the district court again granted summary judgment on the federal claim, and dismissed the state law claim without prejudice, declining to exercise supplemental jurisdiction.  The plaintiff appealed the summary judgment, but did not independently challenge the court's decision to decline supplemental jurisdiction.  The 9th Circuit affirmed the judgment, and issued its mandate in January 2017.  The plaintiff then moved to vacate the judgment under Federal Rules of Civil Procedure rule 60(b)(6), seeking to resurrect the federal claim and asking the court to exercise supplemental jurisdiction over the state law claim.  The district court denied the motion.  The plaintiff appealed the motion's denial. The 9th Circuit affirmed.  It issued its mandate in December 2018.  Later the same month, the plaintiff filed suit in state court for wrongful death, violation of the Bane Act, and unsafe condition of public property.  She contended her lawsuit was timely under 28 U.S.C. 1367(d) and equitable tolling.  The state trial court sustained the county's demurrer on the ground that the action was untimely.

The appellate court agreed.  The plaintiff's statute of limitations under Government Code section 945.6(a) barred the lawsuit unless the running of the limitations was tolled until the 9th Circuit issued its mandate in the rule 60(b)(6) proceeding.  28 U.S.C. 1367(d) tolls a plaintiff's statute of limitations for filing suit in state court while a claim is pending in federal court, and for 30 days after dismissal, unless state law provides for a longer tolling period.  Although the statute does not define "pending," there is consensus in case law that for purposes of the statute a claim remains pending in the federal system through the appeal of the judgment to the federal court of appeals, but not during a period when the plaintiff pursues a petition for writ of certiorari to the Supreme Court.  As a matter of first impression, the appellate court determined that the section 1367(d) tolling period does not extend to proceedings under rule 60(b)(6).  Rule 60(b)(6) allows a court to grant relief from a judgment or order under extraordinary, exceptional circumstances.  Like a petition for certiorari, a 60(b)(6) motion does not affect the finality of the claim's dismissal.  Further, the denial of a 60(b)(6) motion does not affect the finality of a claim's dismissal.  It instead seeks to reopen a matter that is no longer pending.  A plaintiff who has prosecuted an unsuccessful appeal or who chooses not to appeal dismissal of a state law claim has received a full opportunity to seek a federal forum.  The rationale for tolling the plaintiff's time to sue in state court while the federal action is pending no longer applies.  And because rule 60(b)(6)  imposes no specific time limit, and does not forbid multiple motions, allowing tolling would leave state statutes of limitation at the mercies of plaintiffs.  The appellate court also affirmed the trial court's decision that equitable tolling did not apply.  Equitable tolling while a plaintiff pursues an alternative remedy requires that the party's effort must be objectively reasonable--fair, proper, and sensible in light of the circumstances.  Reviewing the decision de novo, the appellate court concluded that the plaintiff's pursuit of the rule 60(b)(6) motion and appeal were not reasonable under the circumstances.