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Ramos Oil Recyclyers, Inc. v. AWIM

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 16, 2009

RAMOS OIL RECYCLYERS, INC., DBA ENVIRONMENTAL SERVICES, PLAINTIFF,
v.
AWIM, INC., JULIE C. NELSON, GERRI SHERMAN, DEFENDANTS. AND RELATED ACTIONS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING AWIM'S MOTION TO MODIFY THE FINAL PRETRIAL ORDER AND FOR JUDGMENT ON THE PLEADINGS*fn1

AWIM, Inc.'s (AWIM) motion filed August 31, 2009, to modify the Final Pretrial Order (FPO) so that AWIM could move for judgment on the pleadings fails to show recognition of the law that "[a] pre-trial order . . . supersedes the pleadings . . . and controls the subsequent course of the action." Donovan v. Crisostomo, 689 F.2d 869, 875 (9th Cir. 1980) (quotations omitted). AWIM failed to make this argument at the Final Pretrial Conference and has not shown justification under the manifest injustice standard for modification of the FPO so that the argument could be considered now. The manifest injustice factor of "inexcusable neglect" on the part of AWIM weighs heavily against the modification AWIM seeks. See United States v. First Nat'l Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981) (stating that before the court modifies a pretrial order it should consider "the degree of willfulness, bad faith or inexcusable neglect on the part of the [movant]"). Therefore, the motion is denied.


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