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Maria Rivera Barragan v. Josefina Morales; et al

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


April 7, 2012

MARIA RIVERA BARRAGAN, PLAINTIFF,
v.
JOSEFINA MORALES; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed April 9, 2012 **

NOT FOR CITATION

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION [Re: Docket Nos. 29, 30]

United States District Court For the Northern District of California

On November 10, 2011, Maria Barragan filed a complaint against Juan Morales, Josefina Morales, and Peter Brazil alleging forgery, fraud, misrepresentation, and conspiracy in connection 18 with the transfer of real property that both Barragan and the Moraleses claim to own. Dkt. No. 1 19 ("Complaint"). The court dismissed the complaint for lack of subject matter jurisdiction, and entered 20 an order of judgment. Dkt. Nos. 27, 28. Several weeks after judgment was entered, Barragan filed a 21 request for reconsideration, and recently filed another similar request. Dkt. Nos. 29, 30. Both filings 22 request that the court "exercise its supplemental jurisdiction" to hear the case. Defendants have not 23 responded to the filings. 24

"No party may notice a motion for reconsideration without first obtaining leave of the court 25 to file the motion." Civ. L.R. 7-9(a). Plaintiff did not seek leave of court before filing her ostensible 26 motions for reconsideration. Despite this procedural error, and to give the plaintiff the benefit of 27 liberal construction for pro se filings, the court construes her two filings as one request for leave to 28 file a motion for reconsideration (hereinafter, "motion"). See Haines v. Kerner, 404 U.S. 529, 520-2 21 (1972) (stating that pro se pleadings should be "liberally construed.")

The moving party in a motion for leave to file a motion for reconsideration must show that:

(1) a material difference in fact or law exists from that which was presented to the court, and the 5 party did not know of such fact or law before entry of the order; (2) new material facts or a change 6 of law occurred after the entry of the order; or (3) the court failed to consider material facts or legal 7 arguments presented before entry of the order. See Civ. L.R. 7-9(b). 8

Plaintiff's motion lacks merit. Not only did Barragan fail to obtain leave of court before 9 filing her motion for reconsideration as required by Civil Local Rule 7-9(a), she also failed to make 10 her request before entry of judgment. Civil Local Rule 7-9(a) makes clear that motions for reconsideration may only be made before the entry of judgment. See Dkt. No. 26 (entering judgment of dismissal before plaintiff filed his motion). Even if these procedural errors were not present, plaintiff has failed to satisfy the necessary standard for the court to grant leave to file a motion for 14 reconsideration. Plaintiff's filings fail to offer any of the three grounds for reconsideration. In both 15 "motions," plaintiff repeats the arguments she has made since filing her original complaint-that 16 she has constitutional claims that are "totally meritorious" and that the defendants will not have any 17 "genuine defenses" to her claims. See Dkt. No. 29, p. 2. She includes nearly 150 pages of 18 documents that appear to consist of court filings in this court and state court, as well as documents 19 related to the real property at issue. She raises no new facts or argument about why the court should 20 reconsider its dismissal. Her most recent filing urges the court to "proceed with the filed motion for 21 reconsideration." Dkt. No. 30, p. 1. There is no evidence to suggest that any of the grounds for 22 reconsideration are present here. 23

Accordingly, the court concludes that plaintiff has raised no facts that would warrant the 24 filing of a motion for reconsideration or the setting aside of this court's February 16, 2012 order. 25

Plaintiff's motion is DENIED. 26

IT IS SO ORDERED.

Notice will be electronically mailed to: Theodore Cominos cominoslawoffice@aol.com 3

Notice will be mailed to: Maria Rivera Barragan 5 Post Office Box 6006 Salinas, CA 93912 6 4 Counsel are responsible for distributing copies of this document to co-counsel who have not 7 registered for e-filing under the court's CM/ECF program.

20120407

© 1992-2012 VersusLaw Inc.



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