The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING MOTION FOR RECONSIDERATION AND DISREGARDING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT (Docs. 59 and 60)
Plaintiff Dorian Davis aka Wali At-Taqi Davis is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 18, 2011, the Magistrate Judge granted Plaintiff's motion for an extension of time to file an opposition to Defendant Hedgpeth's motion for summary judgment, but denied Plaintiff's motion for an extension of time to file a cross-motion for summary judgment as untimely under the scheduling order. On March 18, 2011, Plaintiff filed an opposition, a cross-motion for summary judgment, and objections to the order, which the Court shall construe as a motion for reconsideration.
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).
Plaintiff argues that Local Rule 230(e) permits him to file his cross-motion for summary judgment in response to Defendant's motion. Local Rule 230(e), however, pertains to motions noticed for hearing in regular civil cases. With respect to civil motions and calendaring, it is Local Rule 230(l) which applies to this action. Regardless, in no event does the rule override a scheduling order, which is binding on the parties and which is the controlling document in the case. Fed. R. Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) ("A scheduling order is not a frivolous piece of paper, idly entered . . . ." (internal quotations and citation omitted)).
A motion for summary judgment, whether filed in the first instance or as a cross-motion, is a dispositive motion, and the parties are bound by the scheduling order, which set forth January 31, 2011, as the pretrial dispositive motion deadline. The scheduling order was filed on March 24, 2010, providing Plaintiff more than ample opportunity to file a timely motion for summary judgment or a timely request for an extension of the dispositive motion deadline. Plaintiff did neither and he is precluded from moving for summary judgment.
Accordingly, it is HEREBY ORDERED that Plaintiff's motion for reconsideration is DENIED and his cross-motion for summary judgment is DISREGARDED as untimely.*fn1