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Jason Lacey v. B. Hamkar

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


February 15, 2012

JASON LACEY,
PLAINTIFF,
v.
B. HAMKAR, ET AL., DEFENDANTS.

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

ORDER

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 be vacated.

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 undersigned in Redding, California.*fn3


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