IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 22, 2008
ERIC W. GREEN, PLAINTIFF,
A. BURKER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On November 26, 2008, plaintiff filed a request for reconsideration of the district court's order filed November 18, 2008, finding plaintiff's October 20, 2008 request was untimely filed. Plaintiff sought reconsideration of the magistrate judge's September 19, 2008 order denying plaintiff's motion to compel discovery.
Plaintiff states that he was in transit on September 9, 2008, transferring from High Desert State Prison to Alameda County Jail. The court's order issued September 19, 2008 was sent to plaintiff at High Desert State Prison, but by then plaintiff was held at the Alameda County Jail. Plaintiff filed a timely notice of change of address; although it was not filed with the court until October 6, 2008, plaintiff signed the notice on September 28, 2008, shortly after his arrival at the Alameda County Jail. The September 19 order was not re-served on plaintiff's new address until October 9, 2008, which meant his request for reconsideration was due on or before October 24, 2008, due to the October 13, 2008 holiday. Good cause appearing, the November 18, 2008 order will be vacated and the court will reconsider the September 19, 2008 order.
Pursuant to E.D. Local Rule 72-303(f), a magistrate judge's orders shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the court finds that it does not appear that the magistrate judge's ruling was clearly erroneous or contrary to law.
Therefore, IT IS HEREBY ORDERED that:
1. Plaintiff's November 26, 2008 request for reconsideration is granted; and
2. Upon reconsideration, the order of the magistrate judge filed September 19, 2008, is affirmed.
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