Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Jason Lacey v. B. Hamkar
February 15, 2012
B. HAMKAR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action pursuant to 42 U.S.C. § 1983.*fn1
Defendants seek reconsideration of the court's January 18, 2012, order
granting plaintiff's motion for leave to file a first amended
complaint. Under Federal Rule of Civil Procedure 60(a), the court may
grant reconsideration of final judgments and any order based on
clerical mistakes. In this case, the January 18, 2012, order was the
result of a clerical mistake. Specifically, plaintiff set the motion
for leave to amend for hearing before the District Judge on February
22, 2012. Thus, pursuant to Eastern District of California Local Rule
230(c), defendants' response was not due until 14 days prior to the hearing
date. At the time plaintiff's motion was filed, however, the court was
still processing this case as a prisoner civil rights action governed
by Local Rule 230(l), which specifies that motions in such cases are
decided on the papers without oral argument and that oppositions are
due within 21 days after service of the moving papers.*fn2
As of January 18, 2012, no opposition to plaintiff's December
6, 2011, motion for leave to amend and so the court regarded the
motion as unopposed and granted the motion. Given that defendants'
counsel reasonably believed that their opposition was not due until 14
days prior to the February 22, 2012, hearing, and given a gray area
which exists in the local rules, the court finds that the
characterization of plaintiff's motion as "unopposed" resulted from a
clerical mistake because it was issued before defendants believed
their opposition was due. For this reason, the motion for
reconsideration will be granted and the January 18, 2012, order will
Given this, plaintiff's December 6, 2011, motion for leave to amend, as well as defendants' September 12, 2011, motion for summary judgment are again pending motions on the court's docket. The motion for leave to amend is fully briefed (the court construes defendants' motion for reconsideration as their opposition, and plaintiff's opposition to the motion for reconsideration is his reply), and the matter will be set for oral argument. Following resolution of the motion for leave to amend, the pending motion for summary judgment will be set for hearing, if appropriate.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' motion for reconsideration (Doc. 30) is granted;
2. The January 18, 2012, order is vacated;
3. The first amended complaint filed on January 18, 2012, is stricken pending further order on plaintiff's motion for leave to amend; and
4. The matter is set for hearing on plaintiff's motion for leave to amend on February 23, 2012, at 10:00 a.m. before the ...
Buy This Entire Record For