The opinion of the court was delivered by: Richard C. Tallman United States Circuit Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
Plaintiff Alvin Bernard Jones ("Plaintiff") filed a Motion for Reconsideration of this Court's Order Granting Defendant's Motion for Sanction of Dismissal. For the following reasons, Plaintiff's motion is DENIED.
Plaintiff, a former state prisoner, brought this civil rights action pursuant to 42 U.S.C. § 1983, against California Department of Corrections Officers Frazesn, Dudder, Ayers, Solarzano, and Bess (collectively "Defendants") asserting an excessive force claim under the Eighth Amendment and a due process claim under the Fourteenth Amendment. The action was filed on December 21, 2007. After several delays, discovery proceeded according to a July 16, 2008, Discovery Order, as well as a June 1, 2009, Supplemental Discovery Order and Scheduling Order.
Pursuant to those orders, Plaintiff's deposition commenced on July 30, 2009. He was incarcerated at the time. However, during the deposition, Plaintiff stated that he was unable to continue because he was not feeling well and was going to be sick. He asked to return to his cell. The deposition was adjourned and re-noticed for August 25, 2009, shortly after his release from prison. Defendants properly confirmed with Plaintiff after his release from prison the second deposition date, time, and location. Plaintiff confirmed that he would appear.
But on August 25, 2009, Plaintiff failed to appear for the continued deposition. Defendants waited for approximately one hour. They contacted Plaintiff by phone. Plaintiff advised that he had decided he would not be attending the deposition. Defendants took a certificate of non-appearance.
As a result of Plaintiff's failure to complete his first deposition, this Court was forced to reschedule filing deadlines and to continue the trial date in its Second Supplemental Discovery Order and Scheduling Order in order to ensure that discovery was completed before pretrial motions were due. Because there are more than 2,000 similar cases by pro se inmates like Plaintiff pending in the Eastern District of California, and inadequate numbers of judges available to adjudicate them, a judicial emergency has been declared by the Ninth Circuit Judicial Council. More than seventy visiting judges have been designated to help handle the caseload. Available courtrooms are hard to find when a previous trial date must be rescheduled. The impact on court operations occasioned by uncooperative litigants is not inconsequential. The Second Supplemental Discovery Order specifically admonished Plaintiff that failure to abide by his obligations to comply with this Court's case management orders would result in the imposition of sanctions, including, but not limited to, dismissal of this action pursuant to Local Rule 11-110 (E.D. Cal.).
On September 10, 2009, Defendants Frazesn, Dudder, Ayers, and Solarzano moved for summary judgment. On September 17, 2009, Defendant Bess moved for summary judgment. Plaintiff failed to respond to either motion. On October 2, 2009, Plaintiff failed to timely file his pretrial statement pursuant to the Second Supplemental Discovery Order. Defendants moved for sanction of dismissal and attorney fees. Plaintiff failed to timely respond. On October 8, 2009, this Court granted Defendants' motion for sanction of dismissal but denied the motion for attorney fees. Judgment was entered in favor of Defendants the same day.
On October 14, 2009, Plaintiff timely filed a motion for reconsideration. On November 5, 2009, before Defendants filed a response to Plaintiff's motion for reconsideration, Plaintiff appealed this Court's judgment. Apparently believing this Court lacked jurisdiction over Plaintiff's pending motion for reconsideration, Defendants failed to file a response. On January 13, 2010, this Court received notice that the Court of Appeal has held Plaintiff's appeal in abeyance pending this Court's resolution of Plaintiff's pending motion for reconsideration. On January 14, 2010, this Court ordered Defendants to file a response to Plaintiff's motion. On February 12, 2010, Defendant Bess filed a response. On February 17, 2010, Defendants Frazesn, Dudder, Ayers, and Solarzano filed their response.
The Court now denies Plaintiff's Motion for Reconsideration.
II. Plaintiff's Motion for Reconsideration
A motion for reconsideration must be based upon either Federal Rule of Civil Procedure ("Rule") 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from judgment). See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Rule 59(e) offers "an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30 (3d ed. 2000)). Similarly, courts grant relief under Rule 60(b) only in "extraordinary circumstances." United States v. Washington, 593 F.3d 790, 799 (9th Cir. 2010). Plaintiff does not specify which rule provides the basis for his motion, therefore the Court will address each in turn.
III. Reconsideration Under Rule 59(e)
If a plaintiff files a motion for reconsideration within ten days of the entry of judgment, courts will ordinarily construe it as a motion to alter or amend judgment under Rule 59(e). American Ironworks & Erectors, Inc. v. North American Const. Corp, 248 F.3d 892, 898--99 (9th Cir. 2001). Plaintiff filed his motion six days after entry of judgment. ...