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Adrian Moon v. M. Junious

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 29, 2013

ADRIAN MOON,
PLAINTIFF,
v.
M. JUNIOUS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING RENEWED MOTION FOR RECONSIDERATION, WITH PREJUDICE (Doc. 60.)

I. BACKGROUND

Adrian Moon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On March 23, 2012, Plaintiff consented to the jurisdiction of a Magistrate Judge under 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 16.)

On March 27, 2013, this action was dismissed, with prejudice, for failure to state a claim, based on Plaintiff's failure to file a Third Amended Complaint. (Doc. 54.) On April 8, 2013, Plaintiff filed a motion for reconsideration of the order of dismissal. (Doc. 56.) On April 15, 2013, the Court denied Plaintiff's motion for reconsideration, without prejudice to renewal of the motion within thirty days, providing additional evidence. (Doc. 58.) On April 25, 2013, Plaintiff filed a renewed motion for reconsideration, which is now before the Court. (Doc. 60.)

II. MOTION FOR RECONSIDERATION

The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule 230(j) requires a party to show the Anew or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion.@ L.R. 230(j).

Plaintiff argues that this case should be reopened because he timely submitted a Third Amended Complaint, pursuant to the Court's order of February 19, 2013. Plaintiff asserts that he received the Court's order of February 19, 2013 via U.S. mail on February 28, 2013. Motion, Doc. 60 at 2 ¶1. The Court's order granted him "thirty days from the date of service of this order" to file a Third Amended Verified Complaint. Order, Doc. 53.*fn1 Plaintiff computes that under Rule 6 of the Federal Rules of Civil Procedure, the Court's order granted him until April 1, 2013 to file the Third Amended Complaint, which was thirty days [plus two days, because the thirtieth day was a Saturday] from February 28, 2013, the date Plaintiff received the Court's order. As evidence that he timely submitted the Third Amended Complaint, Plaintiff has lodged a copy of the proposed Third Amended Complaint, showing the Court's "received" date stamp of April 1, 2013. (Doc. 59.)

Discussion

Plaintiff's argument is without merit, because he incorrectly computed the deadline established by the Court's order of February 19, 2013. Plaintiff computes the thirty-day deadline based on the date he received the Court's order, which was February 28, 2013. However, the Court's deadline was based on the date of service of the order, which was February 19, 2013. As the Court explained in the April 15, 2013 order, "thirty days from the date of service of this order " established a deadline of March 25, 2013.*fn2 Order, Doc. 58 at 2:16-18 & fn. 1. Plaintiff has provided no evidence that he submitted the Third Amended Complaint to the Court, or to prison officials under the Mailbox Rule, by the deadline of March 25, 2013.*fn3 In fact, Plaintiff did not sign the Third Amended Complaint until March 27, 2013. Third Amended Complaint, Doc. 59 at 3.

Plaintiff has not forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Therefore, Plaintiff's renewed motion for reconsideration shall be denied, with prejudice.

III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's renewed motion for reconsideration, filed on April 25, 2013, is DENIED, with prejudice; and

2. No further motions for reconsideration shall be accepted or considered in this action.

IT IS SO ORDERED.


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