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Lofofora Eva Contreraz Also Known As Mike Contreraz v. Ken Salazar

February 17, 2012

LOFOFORA EVA CONTRERAZ ALSO KNOWN AS MIKE CONTRERAZ,
PLAINTIFF,
v.
KEN SALAZAR, SECRETARY OF THE USDI; M. SHARON BLACKWELL, DEPUTY COMMISSIONER OF INDIAN AFFAIRS; DOE 1, ACTING DEPUTY ASSISTANT SECRETARY, POLICY AND ECONOMIC DEVELOPMENT; AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING MOTION FOR RECONSIDERATION [Doc. No. 25]

Presently before the Court is Plaintiff Lofofora Eva Contreraz ("Plaintiff")'s motion for reconsideration of the Court's January 30, 2012 order denying Plaintiff's motion for default judgment, motion for finding of contempt, and motion for enforcement of relief. [Doc. No. 25.] For the reasons below, the Court DENIES the motion.

BACKGROUND

Plaintiff commenced this action against Defendants on February 7, 2011. [Doc. No. 1.] On June 9, 2011, the Court granted Plaintiff leave to proceed in forma pauperis, but dismissed Plaintiff's complaint without prejudice pursuant to the screening provision of 28 U.S.C. § 1915(e)(2)(B). [Doc. No. 8.] The Court gave Plaintiff leave to file a first amended complaint ("FAC"). [Id.] On July 21, 2011, Plaintiff filed her FAC. [Doc. No. 9.] On October 13, 2011, the Court issued an order directing the U.S. Marshal to effect service of Plaintiff's FAC on the Defendants. [Doc. No. 14.] On December 28, 2011, Defendants filed an ex parte motion for extension of time to file their response to Plaintiffs' FAC. [Doc. No. 17.] The Court granted Defendants' motion and ordered Defendants to file a response to Plaintiff's FAC on or before January 20, 2012. [Doc. No. 18.] On January 20, 2012, Defendants timely filed a motion to dismiss Plaintiff's FAC. [Doc. No. 19.]

On January 17, 2012, Plaintiff filed a motion for default judgment pursuant to Federal Rule of Civil Procedure 55, a motion for a finding of contempt pursuant to Federal Rule of Civil Procedure 70(e), and a motion for enforcement of relief against non-parties pursuant to Federal Rule of Civil Procedure 71. [Doc. No. 23.] On January 30, 2012, the Court denied these motions. [Doc. No. 24.] By the present motion, Plaintiff moves for reconsideration of the Court's January 30, 2012 Order. [Doc. No. 25, Pl.'s Mot.]

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). "The rule is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).

"'A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). A motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Id.

II. Analysis

A. Default Judgment

Plaintiff argues that the Court's Order denying her motion for default judgment was improper because Defendants never served Plaintiff with a copy of their ex parte motion for extension of time to respond to the FAC. [Pl.'s Mot. at 2-4.] The Court notes that Defendants' counsel filed a certificate of service along with the ex parte motion stating under penalty of perjury that a copy of the motion was mailed to Plaintiff at her address in prison. [Doc. No. 17-1.] Moreover, even assuming Defendants did not serve Plaintiff with a copy of the motion, Plaintiff was not prejudiced by Defendants' failure to serve the motion. Pursuant to Federal Rule of Civil Procedure 6(b)(1), the Court may extend the deadline for filing a response to a complaint "for good cause." See FED R. CIV. P. 6(b)(1) ("When an act may or must be done within a specified time, the court may, for good cause, extend the time."). In their motion, Defendants explained that they needed an extension of time to file their response because one applicable defense required approval from a particular component of the Department of Justice, and members of that office were unavailable due to the holiday season. [Doc. No. 17 at 2.] The Court found that this constituted "good cause" for the extension. Therefore, even if Plaintiff had been able to oppose Defendants' motion, the Court would still have granted Defendants the requested extension. Plaintiff states that she believes that the Defendants did not have a justified reason for seeking the extension and that the motion was simply a delay tactic. [Pl.'s Mot. at 10.] The Court disagrees. Defendants provided a legitimate reason for requesting the extension and there is no evidence that it was done only for the purpose of delay. Because Defendants properly obtained an extension of time to respond to the FAC, and then timely filed their motion to dismiss the FAC, Defendants were never in default. Accordingly, Plaintiff has failed to show the Court's Order denying her motion for default judgment was made in clear error.*fn1

II. Motion for Contempt

Plaintiff argues that the Court erred in denying her motion for contempt because a finding of contempt is not restricted to instances where a party refuses to comply with a judgment, relying on Federal Rule of Civil Procedure 37(b)(2)(A)(vi), (vii). [Pl.'s Mot. at 5-7.] However, Plaintiff did not rely on Rule 37 in her original motion and instead moved for sanctions pursuant to Rule 70. [Doc. No. at 23 at 1-2.] The Court properly denied her motion because Rule 70 "cannot be used as the authority for contempt or sanctions where defendants failed to answer on time." McCabe v. Arave, 827 F.2d 634, 639 (9th Cir. 1987). Plaintiff could have argued that she was entitled to contempt sanction pursuant to Rule 37 in her original motion. It is ...


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