The opinion of the court was delivered by: Patel, J.
This action arises out of the seizure of approximately twenty-eight grams of marijuana by the United States Drug Enforcement Agency ("DEA"), pursuant to a warrant issued by this court. On September 18, 2003, this court ruled that the warrant used to seize this marijuana was invalid and ordered that the marijuana be returned to the Sheriff of Humboldt County. At some point in August of 2003, petitioner Christopher Giauque went missing, and his whereabouts are still unknown. By order of this court on May 28, 2004, Rebecca Giauque, petitioner's wife and the executor of his estate, was substituted as party to Mr. Giauque's claims. Remaining before this court is the government's Motion to Alter or Amend, or for Relief From Judgment, or in the alternative, for Stay Pending Appeal. Also before this court is plaintiff's motion for attorney fees. Having considered the parties' arguments and for the reasons set forth below, the court enters the following memorandum and order.
On April 24, 1999, police arrested Christopher Giauque in Humboldt County and seized approximately twenty-eight grams of marijuana from his vehicle. On May 31, 2000, following the entry of charges against him and pursuant to a negotiated plea, Giauque entered a plea of no contest to a single count of disturbing the peace in violation of California Penal Code section 415. All other charges arising out of the arrest were dismissed.
On September 6, 2000, Giauque filed a motion in the state criminal case for the return of property seized by the Humboldt County Sheriff's Department incident to his arrest, including the approximately 28 grams of marijuana. The parties stipulated that Giauque possessed a legitimate physician's recommendation card for the use of medical marijuana under California's Compassionate Use Act of 1996, Cal. Health & Safety Code § 11362.5. On January 18, 2001, Superior Court Judge W. Bruce Watson issued an order for return of Giauque's property, including the marijuana. Humboldt County Sheriff Dennis Lewis failed to follow the court's order, resulting in an order for contempt with a stay of enforcement filed on May 7, 2001.
On March 30, 2001, the County of Humboldt and the Humboldt County Sheriff's Department, by and through Sheriff Lewis, filed a Complaint for Interpleader and Declaratory relief in this court against Giauque, the United States Department of Justice, the Drug Enforcement Administration, and several unnamed "John Doe" federal defendants. The action sought a determination as to who was entitled to the subject marijuana.
On May 23, 2001, the United States Drug Enforcement Agency presented United States District Judge Charles A. Legge with an application for issuance of a seizure warrant, pursuant to 21 U.S.C. § 881, to allow seizure and forfeiture of the marijuana at issue. Judge Legge issued the warrant, and the Sheriff's Department surrendered the subject marijuana to the Department of Justice. On June 8, 2001, Judge Legge dismissed the civil interpleader action as moot. Following Judge Legge's retirement from the bench, the matter was transferred to this court for resolution.
On July 25, 2001, Giauque filed a motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e). On August 25, 2003, this court entered an order holding that the California state court had exclusive jurisdiction over the subject marijuana, and, therefore, the district court lacked jurisdiction to issue the seizure warrant. The court ordered the DEA to return the subject marijuana to the Humboldt County Sheriff's Department and the state court which asserted jurisdiction over it. Judgment in favor of Giauque was filed on September 18, 2003.
On August 9, 2003, Giauque disappeared and is now believed to be deceased. On May 28, 2004, this court allowed Rebecca Giauque, petitioner's wife and the executor of his estate, to substitute herself as plaintiff in this case. Now before this court is the government's motion to alter or amend or for relief from the court's August 25, 2003 judgment, or, in the alternative, for stay pending appeal. Also before this court is petitioner Rebecca Giauque's motion for attorney fees.
I. Alteration or Amendment of Judgment
Rule 59(e) of the Civil Rules of Civil Procedure allows a court to alter or amend judgment "in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States." Fed.R.Civ.P. 59(a)(2), (e). The court may open the judgment, take additional testimony, amend findings of fact and conclusions of law, and direct the entry of a new judgment. Id. A motion to amend judgment is committed to the "considerable discretion" of the district court. See Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir.2003). The Ninth Circuit has identified four grounds upon which a Rule 59(e) motion may be granted: (1) the motion is "necessary to correct manifest errors of law or fact upon which the judgment is based;" (2) the moving party presents "newly discovered or previously unavailable evidence;" (3) the motion is necessary to "prevent manifest injustice;" or (4) there is an "intervening change in controlling law." McDowell v. Calderon, 197 F.3d 1253, 1254 n. 1 (9th Cir.1999). Motions pursuant to Rule 59(e) must be filed within 10 days following the entry of judgment. Fed.R.Civ.P. 59(e).
Federal Rule of Civil Procedure 60(b) grants relief from judgment on the basis of "newly discovered evidence" or "any other reason justifying relief." Fed.R.Civ.P. 60(b)(2), (6). Application of Rule 60(b)(6) is to be used sparingly to "prevent manifest injustice" where "extraordinary circumstances prevent the party from taking timely action to prevent or correct an erroneous judgment." See Hamilton v. Newland, 374 F.3d 822, 824 (9th Cir.2004). Relief under any provision of Rule 60(b) turns on a failure to timely file to alter or ...