Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JOHN CESARIO, Case No.: 23-cv-1803-WQH-BLM Plaintiff, 10 ORDER v. 11 12 BIOCEPT, INC.; CBIZ, INC.; MICHAEL W. NALL; CBIZ 13 CPAS, P.C.; BRUCE E. 14 GERHARDT; COOLEY LLP; BRUCE A. HUEBNER; JASON 15 MCCARTHY; MARSHA A. 16 CHANDLER; LIPPERT/HEILSHORN & 17 ASSOCIATES, INC.; JODY 18 CAIN; CHARLES BAIR; TIMOTHY C. KENNEDY; 19 LYLE ARNOLD; MAXIM 20 GROUP LLC; MICHAEL W. BROWN; AEGEA 21 BIOTECHNOLOGIES INC.; 22 CBIZ ADVISORS, LLC; 23 STEPHAN FANUCCI; IVOR ROYSTON; DAVID HALE; 24 MICHAEL RABINOWITZ; 25 PAUL LAROSA; TIPTON EVANS; and ANDREW ROSEN, 26 Defendants. 27 28 1 HAYES, Judge: 2 The matters before the Court are the Motion for Reconsideration (ECF No. 199) and 3 the Motion to Alter Judgment (ECF No. 200) filed by Plaintiff John Cesario. 4 I. PROCEDURAL HISTORY 5 On September 29, 2023, Plaintiff John Cesario (“Plaintiff”) initiated this action by 6 filing a Complaint asserting claims under federal securities law related to a “penny stock 7 pump and dump scam.” (ECF No. 1.) On October 20, 2023, Plaintiff filed a First Amended 8 Complaint. (ECF No. 4.) 9 On April 10, 2024, Plaintiff filed a Second Amended Complaint (“SAC”). (ECF No. 10 84.) On February 18, 2024, the Court granted motions to dismiss the SAC as to multiple 11 Defendants. (ECF No. 163.) 12 On March 11, 2025, Plaintiff filed a Third Amended Complaint (“TAC”). (ECF No. 13 164.) On December 19, 2025, the Court issued an Order dismissing the TAC as to all 14 Defendants, except Biocept, Inc (“Biocept)” because the company is undergoing Chapter 15 7 bankruptcy proceedings. (ECF No. 198 at 2 n.1, 25.) 16 On January 20, 2026, Plaintiff filed a Motion for Reconsideration (ECF No. 199) 17 and a Motion to Alter Judgment (ECF No. 200). On January 23, 2026, Plaintiff filed a 18 Supplement to the Motion for Reconsideration. (ECF No. 204.) 19 On April 24, 2026, the following Defendants filed Oppositions: Aegea 20 Biotechnologies, Inc. (ECF Nos. 214, 215); CBIZ, Inc. and CBIZ Advisors, LLC (ECF No. 21 216); CBIZ CPAs P.C. (ECF No. 217); Cooley LLP and Charles Bair (ECF No. 218); 22 Maxim Group LLC and Jason McCarthy (ECF No. 219); Lippert Heilshorn & Associates, 23 Inc. (ECF No. 220); Bruce E. Gerhardt and Bruce A. Heubner (ECF No. 221); and Michael 24 Nall and Timothy Kennedy (ECF No. 222). Plaintiff did not file a Reply. 25 II. CONTENTIONS 26 Plaintiff brings his Motion for Reconsideration under Federal Rule of Civil Procedure 27 60(b)(1). (ECF No. 199 at 2.) Plaintiff “moves for relief from Judge Hayes’s February 2025 28 Order, which rests on multiple, substantial errors of law.” Id.; see ECF No. 163 (dismissing 1 Plaintiff’s SAC). In a letter submitted with the Motion for Reconsideration, however, 2 Plaintiff states that the motion is “[s]eeking relief from the Court’s Order dated December 3 19, 2026, on the grounds of manifest legal errors and mistakes.” (ECF No. 199 at 19.) In 4 the Motion for Reconsideration, Plaintiff contends that the Court “failed to address most of 5 the Plaintiff’s allegations in his . . . Third Amended Complaint.” Id. at 2. Plaintiff reiterates 6 the contentions raised in earlier filings and identifies purported legal errors in the Court’s 7 December 19, 2025 Order (ECF No. 198), including whether “there was [a] legal obligation 8 to file material agreements exhibits to quarterly and annual reports,” whether certain 9 Defendants “knowingly sign[ed] false quarterly reports, whether “Plaintiff failed to plead 10 reliance” in his TAC, and whether the Court “disregard[ed] the pleaded facts demonstrating 11 knowing and intentional misconduct.” (ECF No. 199 at 5–6, 11, 14.) 12 Plaintiff brings his Motion to Alter Judgment under Federal Rule of Civil Procedure 13 59(e). (ECF No. 200 at 2.) Plaintiff describes the allegations in the TAC, id. at 2–18, and 14 contends that the Court’s February 18, 2025 Order dismissing his SAC is “reversible error.” 15 Id. at 7; see also ECF No. 199 at 19 (stating that Motion to Alter Judgment seeks to “prevent 16 manifest injustice resulting from the Court’s Order dated February 18, 2025”). 17 Defendants contend, as a general matter, that Plaintiff’s motions are untimely, 18 procedurally improper, and meritless because they merely “rehash[] all of [Plaintiff’s] prior 19 arguments he made in opposing defendants’ motions to dismiss.” (See, e.g., ECF No. 222 20 at 6–10.) 21 III. LEGAL STANDARDS 22 Federal Rule of Civil Procedure 60(b) provides: 23 On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following 24 reasons: 25 (1) mistake, inadvertence, surprise, or excusable neglect; 26 (2) newly discovered evidence that, with reasonable diligence, could not have 27 been discovered in time to move for a new trial under Rule 59(b); 28 1 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 2 3 (4) the judgment is void; 4 (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it 5 prospectively is no longer equitable; or 6 (6) any other reason that justifies relief. 7 Fed. R. Civ. P. 60(b). The Ninth Circuit states: “Rule 60(b) provides for extraordinary relief 8 which may be granted only upon an adequate showing of exceptional circumstances.” 9 Stevens v. ITT Sys., Inc., 868 F.2d 1040, 1041 n.1 (9th Cir. 1989) (quotation and citation 10 omitted). 11 Federal Rule of Civil Procedure 59(e) permits a court to “reconsider and amend a 12 previous order” but is also an “extraordinary remedy, to be used sparingly in the interests 13 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Est. of Bishop, 229 14 F.3d 877, 890 (9th Cir. 2000) (quotation and citation omitted). “Under Rule 59(e), a motion 15 for reconsideration should not be granted, absent highly unusual circumstances, unless the 16 district court is presented with newly discovered evidence, committed clear error, or if 17 there is an intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 18 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). “A Rule 59(e) motion may not be 19 used to raise arguments or present evidence for the first time when they could reasonably 20 have been raised earlier in the litigation.” Kona Enters., 229 F.3d at 890. 21 IV. DISCUSSION 22 Plaintiff may seek reconsideration or alteration only of a final, appealable judgment. 23 Reed v. Paramo, No. 18-CV-361 JLS (DEB), 2023 WL 5985519, at *2 (S.D. Cal. Sept. 14, 24 2023) (“Federal Rules of Civil Procedure 59(e) and 60(b) [] apply to motions for 25 reconsideration of final appealable orders and relief from judgment.”) (quotation and 26 citation omitted); Certain Interested Underwriters at Lloyd’s, London v. Bear, LLC, No. 27 15-CV-630-BTM-BLM, 2018 WL 3993354, at *3 (S.D. Cal. Aug. 21, 2018), aff’d, 796 F. 28 1 App’x 372 (9th Cir. 2019) (“Rule 59(e) and 60(b) apply only to final judgments and 2 appealable interlocutory orders.”). Here, the Court dismissed Plaintiff’s Third Amended 3 Complaint “as to all Defendants except for Biocept, Inc.” because of the ongoing 4 bankruptcy proceedings against Biocept. (ECF No. 198 at 2 n.1.) The parties did not 5 request that partial final judgment be entered pursuant to Federal Rule of Civil Procedure 6 54(b), and the Court did not do so in its Order. (See ECF No. 209 at 2 n.1 (stating the 7 same).) The Court has not entered a final, appealable judgment as to all parties in this 8 action. 9 Upon review of the substance of Plaintiff’s motions, the Court concludes that there 10 is no new evidence, change in the law, or clear error in its reasoning that warrants 11 reconsideration or alteration of its December 19, 2025 Order. (ECF No. 198.) Motions for 12 reconsideration or the alteration of a judgment are not appropriate vehicles to “raise 13 arguments or present evidence for the first time when they could reasonably have been 14 raised earlier in the litigation.” Anthony v. Cnty. of San Diego, No. 25-CV-00310-DMS- 15 MMP, 2026 WL 166374, at *1 (S.D. Cal. Jan. 20, 2026) (quotation and citation omitted). 16 A “party seeking reconsideration must show more than a disagreement with the [c]ourt’s 17 decision, and recapitulation of the cases and arguments considered by the court before 18 rendering its original decision fails to carry the moving party’s burden.” United States v. 19 Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (quotations omitted). 20 Plaintiff raises contentions that have been discussed during briefing on the motions 21 to dismiss throughout this action and adequately addressed in the Court’s orders. (ECF 22 Nos. 163, 198.) Plaintiff may not raise these contentions again to seek a “second bite at the 23 apple” following the Court’s adjudication of the motions to dismiss. Huhmann v. FedEx 24 Corp., No. 13-CV-00787-BAS NLS, 2015 WL 6128494, at *2 (S.D. Cal. Oct. 16, 2015) 25 (quoting Weeks v. Bayer, 246 F.3d 1231, 1236–37 (9th Cir. 2001)); see Am. Ironworks & 26 Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 899 (9th Cir. 2001) (“Because [the 27 moving parties] simply reargued their case and offered no basis for withdrawal of the 28 [court’s] order, the district court did not abuse its discretion in denying the [Rule 60(b)] | motion.”); Smith v. Shartle, No. CV-18-00323-TUC-RCC, 2019 WL 5653444, at *2 (D. 2 Ariz. Oct. 31, 2019) (quotations omitted) (“A motion for reconsideration need not be 3 granted if it asks the district court merely to rethink what the court had already thought 4 through — rightly or wrongly.”). The “extraordinary remedy” of reconsideration is not 5 warranted in this action. Kona Enters., 229 F.3d at 890. 6 The record indicates that Plaintiff seeks review of the Court’s non-final Order 7 dismissing his TAC as to all Defendants, except Biocept. (ECF No. 201 (Plaintiff's Notice 8 ll of Appeal); ECF No. 213 (Ninth Circuit’s dismissal of appeal for lack of jurisdiction).) In || order to expedite Plaintiff’s opportunity to seek such review in the Court of Appeal and 10 |! there being no just reason for delay, the Court finds cause to enter judgment under Federal 1! of Civil Procedure 54(b) as to all claims against Defendants, except Biocept, in 12 || accordance with its December 19, 2025 Order (ECF No. 198). This Order constitutes notice 13 that any party to this action opposing the entry of immediate judgment shall file a response 14 || within twenty-one (21) days showing cause as to why the Court should not enter judgment |lunder Rule 54(b). If no party files a response, the Court will enter judgment as to all claims 16 against all Defendants, except Biocept, pursuant to Rule 54(b). V7 Vv. CONCLUSION 18 IT IS HEREBY ORDERED that Plaintiff’s Motion to Alter Judgment (ECF No. 19 199) and Motion for Reconsideration (ECF No. 200) are denied. 20 IT IS FURTHER ORDERED that any party opposing the entry of judgment in 21 || accordance with the Court’s December 19, 2025 Order (ECF No. 198) dismissing claims 22 |! against all Defendants, except Biocept, shall file a response no later than twenty-one (21) 23 || days from the filing of this Order. 24 25 26 || Dated: June 8, 2026 itton~ Z. Ma 27 Hon, William Q. Hayes United States District Court