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Robert P. Benyamini v. L. Johnson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 8, 2011

ROBERT P. BENYAMINI,
PLAINTIFF,
v.
L. JOHNSON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING MOTION FOR RECONSIDERATION (DOC. 44)

Plaintiff Robert P. Benyamini ("Plaintiff") is in the custody of the California Department of Corrections and Rehabilitation. This action was dismissed on July 27, 2010, for Plaintiff's failure to obey a court order. Plaintiff had been ordered to submit service documents, but failed to do so in a timely manner. Pending before the Court is Plaintiff's motion for reconsideration filed October 1, 2010, construed as Plaintiff's second motion for reconsideration. Doc. 44.

A court may relieve a party from a final judgment for, inter alia, mistake, inadvertence, surprise, or excusable neglect. Fed. R. Civ. P. 60(b)(1). Here, Plaintiff again contends that he submitted the service documents on June 7, 2010 for mailing to the Court. Doc. 44. Plaintiff submits as evidence a personal log from Plaintiff which allegedly shows that Plaintiff sent the service documents on June 7, 2010. This log is unverified.

Plaintiff had been ordered to submit service documents on several occasions, with the last order requiring submission of service documents within twenty days of service of the Court's April 16, 2010 Order. See Doc. 32. Plaintiff then filed motions for reconsideration and to stay the proceedings on May 20, 2010 and May 26, 2010. Docs. 33, 34. The Court denied Plaintiff's motions on May 28, 2010. Doc. 35. On July 1, 2010, the Magistrate Judge issued a Findings and Recommendation that Plaintiff's action be dismissed for failure to obey a court order, with objections due within twenty days. Doc. 36. The Court adopted the Findings and Recommendation and dismissed Plaintiff's action for failure to obey a court order on July 27, 2010. Docs. 37, 38. The Court did not receive the service documents until August 3, 2010.

Doc. 41; see September 9, 2010 Order, Doc. 43. Plaintiff's objections were also untimely, as they were not filed until August 5, 2010. Doc. 39.

Plaintiff does not provide a sufficient showing that he complied with the Court's previous orders, such as a proof of service or other similar document. Plaintiff's personal log is not persuasive, as it does not demonstrate proof that Plaintiff filed the service documents in a timely manner.

Accordingly, Plaintiff's motion for reconsideration, filed October 1, 2010, is DENIED. No further motions for reconsideration will be accepted.

IT IS SO ORDERED.

b9ed48

20110308

© 1992-2011 VersusLaw Inc.



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