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CASTILLO v. U.S.

United States District Court, S.D. California


October 11, 2005.

JOSE LUIS CASTILLO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR RECONSIDERATION [Doc. No. 135]
Pending before the Court is Plaintiff's motion for reconsideration. Plaintiff seeks relief from the order dismissing the action without prejudice for failure to prosecute.

A court may, upon motion, relieve a party from final judgment or order for: "(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged . . .; or (6) any other reason justifying relief from the operation of judgment." Fed.R.Civ.P. 60(b). A motion for reconsideration "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations omitted).

  Plaintiff argues the Court failed to consider his "Motion in Opposition" to the dismissal and requests a hearing be held on the Order to Show Cause.

  A review of the docket and case file in this matter demonstrates the Court scheduled an order to show cause hearing for September 1, 2005, for dismissal for want of prosecution based upon Plaintiff's failure to serve the defendants within 120 days of the filing date. On September 8, 2005, the Court accepted for filing nunc pro tunc to August 29, 2005, Plaintiff's "Motion in Opposition to Dismissal of Instant Matter for Failure to Prosecute." On September 9, 2005, this Court dismissed the complaint finding Plaintiff failed to appear at the hearing or contact the Court.

  This Court finds although Plaintiff failed to appear at the hearing he was incarcerated at the time and was unable to appear without an order of the Court. Furthermore, Plaintiff did attempt to contact the Court regarding the order to show cause when he lodged his "Motion in Opposition." However, upon review of Plaintiff's submission, the Court finds the "Motion in Opposition" fails to demonstrate good cause for failing to serve the remaining defendants in this action.

  Accordingly, IT IS HEREBY ORDERED Plaintiff's motion for reconsideration is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to Plaintiff's request the Court consider the "motion in opposition." The motion is DENIED as to Plaintiff's request for a hearing. Based upon the Court's consideration of the "motion in opposition," this case remains DISMISSED WITHOUT PREJUDICE for failure to prosecute for failing to serve the complaint as required.

20051011

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