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Comaduran v. Clark

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 12, 2010

LOUIS JESUS COMADURAN, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER SETTING BRIEFING AND HEARING ON RULE 60(b) MOTION AND ORDERING RESPONDENT TO PROVIDE COPIES OF LODGMENTS

Petitioner's objections to the Magistrate Judge's Report and Recommendation ("R&R") were originally due on April 9, 2010. At the end of April, the Court received a motion by Petitioner to extend the time for filing objections. In an order filed on May 3, 2010, the Court granted Petitioner's motion and extended the deadline for filing objections to June 1, 2010. By June 23, 2010, the Court had not received any objections and issued an order adopting the R&R and denying the Petition. On July 6, 2010, the Court received from Petitioner a motion for extension of time to file objections to the R&R and a request for a copy of the records lodged by Respondent. In his motion, Petitioner explains that he never received a copy of the Court's May 3, 2010 order and was, therefore, unaware of the June 1 deadline.

The Court notes that there does appear to be some sort of issue with respect to the amount of time it takes for mail to be delivered to and from the institution where Petitioner is housed. Petitioner's proof of service of the most recent motion for an extension of time is dated June 10, 2010. The envelope containing Petitioner's motion was postmarked June 14, 2010 in Bakersfield, California. The Court did not receive the mailing until July 6, 2010.

The Court construes Petitioner's motion for an extension of time as a motion under Fed. R. Civ. P. 60(b) to set aside the judgment. Petitioner may file his objections to the R&R in support of the Rule 60(b) motion on or before September 20, 2010. Respondent may file a reply on or before October 4, 2010. The Court sets the motion for hearing on October 8, 2010 at 11:00 a.m. Unless otherwise directed by the Court, there shall be no oral argument, and no personal appearances are necessary.

The Court also GRANTS Petitioner's request for copies of Respondent's lodgments. The Court ORDERS Respondent to provide Petitioner with a copy of the lodgments on or before August 16, 2010.

IT IS SO ORDERED.

20100712

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