IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 6, 2012
DONALD R. HUENE, PLAINTIFF,
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is plaintiff Donald Huene's "motion for limited reconsideration" of the court's findings and recommendations filed August 24, 2012, recommending that defendant Internal Revenue Service's motion for summary judgment be granted. (Dkt. No. 37.)*fn1
In his motion, plaintiff does not object to the court's substantive findings and recommendations, but essentially requests reconsideration of the court's finding that plaintiff failed to appear at the hearing on defendant's motion for summary judgment in violation of E.D. Cal. L.R. 230(i). (Dkt. No. 37 at 1-2.) In his declaration in support of the motion for limited reconsideration, plaintiff explains that he believed that the motion for summary judgment was adequately briefed, that he left a voicemail for the undersigned's courtroom deputy stating that plaintiff would be available by phone if oral argument was necessary, and that he never received a phone call from the court at the time of the hearing on the number he left in the voicemail. (Id. at 3-4.) He acknowledges the court's attempts to contact him during the hearing, but states that an incorrect number must have been dialed. (Id. at 4.)
While the court accepts plaintiff's explanation of events, which appear to amount to an honest misunderstanding, there is no question that plaintiff failed to appear in violation of E.D. Cal. L.R. 230(i), which states that "[a]bsent notice of intent to submit the matter on the briefs, failure to appear may be deemed withdrawal of the motion or of opposition to the motion, in the discretion of the Court, or may result in the imposition of sanctions." In this case, the court never notified the parties that the matter was submitted on the briefs or that the hearing was vacated, and a party cannot unilaterally vacate a hearing. See also E.D. Cal. L.R. 230(g) ("Alternatively, the motion may be submitted upon the record and briefs on file if the parties stipulate thereto, or if the Court so orders....") (emphasis added). Furthermore, the court never authorized plaintiff to appear telephonically. In any event, the court did not recommend a grant of defendant's motion for summary judgment based on plaintiff's failure to appear, but instead proceeded to consider the merits of the motion, including plaintiff's opposition. Additionally, the court declined to impose sanctions for plaintiff's failure to appear. Therefore, there is no proper basis to amend the court's prior findings and recommendations.
Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that plaintiff's motion for limited reconsideration (dkt. no. 37) is DENIED.