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Tony Martinez v. Mp Birdcage Marketplace

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 31, 2012

TONY MARTINEZ,
PLAINTIFF,
v.
MP BIRDCAGE MARKETPLACE, LLC, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

On May 11, 2010, Defendant Dollar Tree Stores, Inc. ("Defendant"), filed a Request for Clarification, which this Court construes as a Motion for Reconsideration of its May 10, 2010, minute order denying Defendant's Motion for Summary Judgment without prejudice. The Court issued that minute order in reliance on Plaintiff's assertion to the Court that he intended to dismiss this action. See ECF No. 57. The Court thus ordered the parties to file dispositional documents.

From Plaintiff's subsequent filings, however, it has become clear that Plaintiff has no intention of dismissing this action and that, instead, he is asking this Court to declare his ADA claims moot and to dismiss his state law claims. See ECF No. 61. Indeed, had Plaintiff actually intended to dismiss his action, he has had more than ample time to do so. It is thus apparent to the Court now that, by his original assertions, Plaintiff simply sought to avoid entry of summary judgment.

Accordingly, this Court now finds that Plaintiff's letter to the Court (ECF No. 57), even if not so-intended at the time, was unclear and misleading as to the parties' positions regarding settlement. Defendant's Request for Clarification, construed as a Motion for Reconsideration (ECF No. 59), is therefore GRANTED. See Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (reconsideration justified if "1)the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the moving party presents newly discovered or previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law") (internal citations, quotations and emphasis omitted).

Defendant's Motion for Summary Judgment, to which Plaintiff specifically filed a Statement of Non-Opposition (ECF No. 56), is also GRANTED based on that non-opposition. The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.

20120131

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