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.
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