UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 12, 2008
UNITED STATES OF AMERICA, PLAINTIFF,
MICHAEL L. MONTALVO, DEFENDANT.
Pursuant to Federal Rule of Civil Procedure 60(b), Montalvo moves for reconsideration of this court's Order of November 17, 2008, denying his motion for relief from final judgment.
"Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
Montalvo does not present newly discovered evidence or assert that there has been an intervening change in controlling law. Rather, he contends that the court committed clear error by not applying certain exceptions to the mandate rule and the law of the case doctrine. However, the court decided defendant's motion in the first instance, not on remand; therefore, the court had no occasion to apply the mandate rule or the law of the case doctrine, let alone their exceptions. See Vizcaino v. U.S. Dist. Court for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999) ("[The] law of the mandate, also called law of the case, embodies the principle that on remand 'litigants should not be permitted to relitigate issues that they have already had a fair opportunity to contest.'" (quoting Cowgill v. Raymark Indus., Inc., 832 F.2d 798, 802 (3d Cir. 1987) (emphasis added)). Accordingly, defendant's argument is without merit.
IT IS THEREFORE ORDERED that defendant's motion for reconsideration be, and the same hereby is, DENIED.
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