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Wilson Gorrell v. Thomas Sneath

March 26, 2013

WILSON GORRELL,
PLAINTIFF,
v.
THOMAS SNEATH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 39) ORDER GRANTING PLAINTIFF'S REQUEST FOR A COPY OF THE COURT'S DOCKET, AND DIRECTING THE CLERK OF COURT TO SERVE PLAINTIFF

On February 11, 2013, Plaintiff Wilson Gorrell ("Plaintiff") filed a First Amended Complaint. (Doc. 34). Because Plaintiff failed to comply with the Federal Rules of Civil Procedure and did not seek leave of the Court or obtain Defendants' consent prior to filing the amended complaint, the Court ordered that his First Amended Complaint be is stricken. (Doc. 37). Plaintiff now seeks reconsideration of the Court's order striking his First Amended Complaint. (Doc. 39 at 1).

Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A reconsideration motion "should not be granted absent highly unusual circumstances." McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999), cert. denied, 490 U.S. 1059 (1989). A reconsideration motion "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple.'" See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). "A party seeking reconsideration must show more than a 2 disagreement with the Court's decision, and recapitulation of the cases and arguments considered by 3 the court before rendering its original decision fails to carry the moving party's burden." United 4 States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal citations 5 omitted). "To succeed, a party must set forth facts or law of a strongly convincing nature to induce the 6 court to reverse its prior decision." Id. 7

Reconsideration is appropriate if the court: (1) is presented with newly discovered evidence;

(2) has committed clear error or the initial decision was manifestly unjust; or (3) is presented with an 9 intervening change in controlling law. School District 1J, Multnomah County v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). In addition, there may be other highly unusual circumstances warranting reconsideration. Id. Under this Court's Local Rule 230(j), a party seeking reconsideration must demonstrate "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion" and "why the facts or circumstances were not shown at the time of the prior motion."

Plaintiff argues his First Amended Complaint "was not entitled 'Motion to Amend' or 'Leave to Amend', and was intended to supplement the original complaint to provide two things: (1) clarification of a basic tenant of the complaint; and (2) an amended demand for judgment." (Doc. 39 at 1). He asserts this "was his firstamended or supplemental complaint, and his intention to amend the relief requested was clear as was his desire to provide information . . . supported by documentation not previously available." (Doc. 39 at 3). With these arguments, Plaintiff has not carried his burden to present the Court with newly discovered evidence, identify a clear error or manifestly unjust decision by the Court, or identify a change in controlling law. Rather, he simply disagrees with the Court's decision to strike his complaint, which does not support a request for reconsideration. Westlands Water Dist., 134 F.Supp.2d at 1131.

Notably, a plaintiff is not permitted to supplement a pleading with additional exhibits/ evidence without permission of the Court. See Doe v. Yates, 2009 U.S. Dist. LEXIS 104814 at *2 (E.D. Cal. Nov. 10, 2009) (citing Local Rule 220 [A first amended complaint must be "complete in itself without reference to the prior or superceded pleading." ]). As explained previously by the Court, if Plaintiff 2 desires to file a First Amended Complaint, requested pleading amendments must be made either 3 through a stipulation or motion to amend. Fed. R. Civ. P. 15(a)(2). Thus, if Plaintiff is unable to 4 obtain a stipulation from Defendants to file his amended complaint, he may file a motion to amend the 5 pleadings, at which time the Court will consider whether Plaintiff demonstrates good cause to file the 6 amended pleading. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (explaining 7 an party must demonstrate good cause when filing an amended complaint after a pleading amendment 8 deadline set by the Court's scheduling order has expired). 9

Plaintiff also requests clarification of the Court's order striking his First Amended complaint. (Doc. 39 at 1). In error, the Court observed "Defendants filed an answer to Plaintiff's Second Amended Complaint on August 6, 2012." (Doc. 37 at 1). However, Plaintiff has not filed an amended complaint. Defendants filed an answer to the operative complaint filed by Plaintiff on March 9, 2012. Because of the confusion caused by its error, the Court will grant Plaintiff's request for a printed copy of the docket.

For the foregoing reasons, IT IS HEREBY ORDERED:

1. Plaintiff's request for reconsideration is DENIED;

2. Plaintiff's request for a copy of the Court's docket is GRANTED; and

3. The Clerk of Court SHALL provide a copy of the Court's docket to Plaintiff.

IT IS SO ORDERED.

20130326 ...


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