The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION DENYING
I.INTRODUCTION/BACKGROUND PETITIONER'S MOTION FOR NEW TRIAL AND MOTION TO VACATE JUDGMENT (DOC. 65).
Before the court for decision is Petitioner Dennis Napier's motion for new trial, or, in the alternative, motion to vacate the judgment. Doc. 65.
On January 30, 2009, special agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), with the assistance of officers from the Clovis Police Department, executed a federal search warrant at petitioner's residence in Clovis, California. During the search, agents located and seized ten (10) firearms.*fn1
The seized firearms were accepted into the ATF system on February 2, 2009 and a notice was sent to movant on February 23, 2009.
Petitioner filed a claim, which was received by ATF on March 25, 2009. Doc. 1, Ex. A. On June 26, 2009, petitioner filed a motion for return of property pursuant to Federal Rule of Civil Procedure Rule 41(g). Doc. 1. On January 8, 2010, the Magistrate Judge filed Findings and Recommendations recommending denial of Petitioner's motion for return of property. Doc. 13. Petitioner filed objections on January 12, 2010, January 14, 2010, January 19, 2010 and February 22, 2010. Docs. 15, 20, 19 & 25.
On July 30, 2010, the United States filed a brief in support of its request that the District Court adopt the Findings and Recommendations. Doc. 41. Petitioner filed an opposition on August 30, 2010. Doc. 43. On March 24, 2011, after a number of continuances and a hearing on February 28, 2011, the district court denied the petitioner's motion for return of property by adopting the Magistrate Judge's Findings and Recommendations, but stayed destruction of the property pending final determination by the appellate court. Doc. 64.
On May 23, 2011, Petitioner filed a "Motion for New Trial[/] Motion to Vacate the Judgment." Doc. 65. The United States filed an opposition. Doc. 68, filed June 7, 2011. Petitioner filed a reply. Doc. 69, filed June 14, 2011.
A.Rule 59 Motion Untimely.
A motion for new trial is governed by Federal Rule of Civil Procedure 59, which provides that "[a] motion for new trial must be filed no later than 28 days after entry of judgment." Fed. R. Civ. P. 59(b). A motion to alter or amend a judgment brought under Rule 59(e) must likewise be "filed no later than 28 days after the entry of judgment." Here, the Order adopting the Magistrate Judges' Findings and Recommendations was entered March 24, 2011. Doc. 64. Plaintiffs' motion for new trial, filed May 23, 2011, even if construed as a motion to alter or amend judgment under Rule 59(e), is DENIED as untimely.
Plaintiffs' reply specifically invokes Rule 60, which provides, ...