ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
Order on Motion for Reconsideration
Plaintiff Ronald Derrick Nance is a state prisoner who was proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 19, 2003, Defendants' motion to dismiss was granted, and this action was dismissed, without prejudice, based on Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a). On February 11, 2005, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal. On November 4, 2009, Plaintiff filed a motion seeking to set aside judgment.*fn1
Defendants did not file a response.
Plaintiff's appeal of the dismissal of this action was affirmed by the Ninth Circuit, and mandate issued. Fed. R. App. P. 41. Therefore, the Court has jurisdiction to consider Plaintiff's motion to set aside judgment. Standard Oil Co. of California v. United States, 429 U.S. 17, 18-9, 97 S.Ct. 31 (1976); Gould v. Mutual Life Insurance Co. of New York, 790 F.2d 769, 772-73 (9th Cir. 1986).
Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances..." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control...." Id. (internal quotation marks and citation omitted).
Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion." "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original).
A motion for reconsideration must be brought within a reasonable time. Fed. R. Civ. P. 60(c)(1). In determining whether the motion was brought within a reasonable time, courts look to "'the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties.'" Lemoge v. United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009) (quoting Ashford v. Steuart, 657 F2d. 1053, 1055 (9th Cir. 1981)); also In re Pacific Far East Lines, Inc., 889 F.2d 242, 249 (9th Cir. 1989).
This action was filed more than eleven years ago and necessarily concerned events arising prior to that time. Judgment was entered almost seven years ago, and that judgment was affirmed on appeal more than five years ago. Certainly the interest in finality weighs against Plaintiff given the sheer number of years which have passed.
Plaintiff offers no explanation for the almost seven year delay between entry of judgment and the filing of his motion seeking reconsideration, or the more than five year delay between the affirmance of the dismissal on appeal and the filing of the motion. Plaintiff states only that, after carefully researching the case, he believes the Court erred in dismissing it, and he then ...