The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Presently before the Court is Plaintiffs' Motion for Reconsideration of the Court's imposition of terminating sanctions on Plaintiffs for their failure to prosecute.*fn1
On August 13, 2007, the Court issued a Pretrial Scheduling Order ("Scheduling Order") setting the Final Pretrial Conference ("Pretrial Conference") for October 10, 2008. In that Order, the Court specifically directed the parties to file a Joint Pretrial Conference Statement ("Joint Statement") no later than September 26, 2008. Additionally, the Court ordered that witness lists and exhibit lists were to be submitted the same day. The Court also mandated that attorneys for each party were to be present and ready to proceed at that Pretrial Conference. Finally, the Scheduling Order warned the parties that failure to cooperate in the preparation of the Joint Statement or to participate in good faith at the Pretrial Conference could result in any sanctions the Court deemed appropriate.
Plaintiffs' attorney filed a motion to withdraw as counsel on June 6, 2008, which this Court granted on August 7, 2008. In its Order the Court directed Plaintiffs to notify the Court no later than September 8, 2008, of their intention to secure counsel or to proceed pro se. On September 8, Plaintiffs filed a request for more time to seek new representation, which this Court granted via minute order on September 9, 2008. In that minute order, the Court gave Plaintiffs until September 25, 2008, to inform the Court of their election. The Court went on to state, "If the response is not received by the Court on or before 9/25/2008 at 4:00 p.m., an Order To Show Cause why sanctions (including terminating sanctions) should not be imposed will issue without further notice from the Court."
On September 25, 2008, the Plaintiffs filed a notice with the Court stating that they would proceed pro se.
At that time, Plaintiffs also requested an extension of two weeks to file their Joint Statement, witness lists, and exhibit lists. Despite the fact that those documents were due the following day, Plaintiffs had not met and conferred with Defendants regarding the joint submission of documents, nor did Plaintiffs subsequently file individual submissions.
On the morning of October 10, 2008, at approximately 7:30 a.m., Plaintiffs left a voice mail for the Court indicating that for personal reasons, specifically to attend work and to care for a child with pinkeye, they would not be attending the Pretrial Conference, which was scheduled to begin at 9:00 a.m. that morning. Plaintiffs sent emails to counsel for the Defendants stating the same.
Thus, at the Pretrial Conference, Defendants moved for terminating sanctions, which the Court granted based on Plaintiffs' failure to diligently prosecute this case. Specifically, the Court found that Plaintiffs failed to file the required pretrial documents, failed to appear at the Pretrial Conference, and engaged in a pattern of dilatory behavior over the course of this litigation.*fn2 Presently before the Court is Plaintiffs' Motion challenging its decision.
A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). This principle is generally embodied in the law of the case doctrine. That doctrine counsels against reopening questions once resolved in ongoing litigation. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989). Nonetheless, under certain limited circumstances, the court has discretion to reconsider its prior decisions.
A motion for reconsideration is treated as a Rule 59(e) motion if filed within ten days of entry of judgment, but as a Rule 60(b) motion if filed more than ten days after judgment. See Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Since this motion is seeking reconsideration of a final judgment and was filed more than ten days after the entry of judgment, the Court will treat it as a Rule 60(b) motion. "Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court." Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).
Rule 60(b) enumerates the grounds upon which a motion for relief from an order or judgment may be made. It specifies that:
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 reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an ...