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Dwayne B. Burns v. Michael Mukasey

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 27, 2011

DWAYNE B. BURNS,
PLAINTIFF,
v.
MICHAEL MUKASEY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, who is proceeding pro se, brings this civil action alleging, among other things, violation of the right to keep and bear arms under the Second Amendment. Pending before the court is plaintiff's motion for reconsideration (Doc. 75) of the court's April 20, 2011, order.

On March 10, 2011, defendants filed their motion for summary judgment, which was scheduled for hearing on March 14, 2011, before the assigned District Judge. On March 14, 2011, a minute order issued vacating the March 14, 2011, hearing and directing defendants to notice their motion on the undersigned's hearing calendar pursuant to Eastern District of California Local Rule 302(c). That same day defendants re-noticed their motion for summary judgment for hearing before the undersigned on April 28, 2011.

On April 14, 2011, plaintiff filed the following: (1) "Plaintiff's Motion to Strike the Declarations Filed in Support of Defendants' Motion for Summary Judgment" (Doc. 67); and (2) "Plaintiff's Opposition to Defendants' Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment" (Doc. 68). On April 20, 2011, the court issued an order removing these motions from the April 28, 2011, hearing calendar due to deficient notice pursuant to Local Rule 230(b). Plaintiff seeks reconsideration of this order.

Under Rule 60(a), the court may grant reconsideration of final judgments and any order based on clerical mistakes. Relief under this rule can be granted on the court's own motion and at any time. See Fed. R. Civ. P. 60(a). In his motion for reconsideration, plaintiff correctly notes that Local Rule 230(e) permits "[a]ny counter-motion or other motion . . . that is related to the general subject matter of the original motion. . . ." to be served and filed on the date for opposition to the original motion. Because plaintiff's April 14, 2011, motions qualify as either a counter-motion or related motion, and because they were filed on the due date for opposition to defendants' motion for summary judgment, the court erred in vacating them as pending motions on the court's docket. For this reason, plaintiff's motion for reconsideration will be granted.

Under Local Rule 230(e), when a counter-motion or related motion is filed, "the court may continue the hearing on the original and all related motions so as to give all parties reasonable opportunity to serve and filed oppositions and replies to all pending motions." In order to provide defendants adequate time to respond to plaintiff's April 14, 2011, motions, the court will vacate the April 28, 2011, hearing and set a briefing schedule on plaintiff's April 14, 2011, motions. Upon completion of briefing, the court will set a new hearing date for all pending motions.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for reconsideration (Doc. 74) of the court's April 20, 2011, order is granted;

2. The April 28, 2011, hearing before the undersigned is vacated;

3. Opposition to plaintiff's April 14, 2011, motions shall be served and filed by May 13, 2011;

4. Any reply to defendants' opposition to plaintiff's April 14, 2011, motions shall be served and filed by May 27, 2011; and

5. Upon completion of briefing, a new hearing date for all motions will be set.

20110427

© 1992-2011 VersusLaw Inc.



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