The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION AND MOTION TO DISMISS [ECF Nos. 44 & 45]
Currently before the Court is Defendant's March 28, 2013 Motion for Reconsideration of the Court's March 26, 2013 Order and Request for Additional Monetary Sanctions to Enforce Compliance[ECF No. 44 ("Def.'s Mot.")], Defendant's Motion to Dismiss [ECF No. 45 ("MTD")], Plaintiff's April 17, 2013 opposition to the Motion to Dismiss [ECF No. 46 ("MTD Oppo.")], Plaintiff's April 18, 2013 opposition to the Motion for Reconsideration [ECF No. 48 ("MFR Oppo.")], and Defendant's April 22, 2013 replies to Plaintiff's opposition to the Motion to Dismiss [ECF No. 52 ("MTD Reply")] and opposition to the Motion for Reconsideration [ECF No. 53 ("MFR Reply")].
For the reasons set forth below, Defendant's motions are DENIED.
On April 4, 2012, Plaintiff, Joseph Lee, filed a complaint in this Court alleging retaliation in violation of the Americans With Disabilities Act ("ADA"), Unruh Civil Rights Act, and California Disabled Persons Act. ECF No. 1. Plaintiff claims that Defendant is retaliating against him due to a previous lawsuit that he brought against Defendant in 2011 (Case No. 11cv459-WQH (BLM)). Id. at 1. The previous lawsuit concerned Plaintiff's ability to park in designated handicapped accessible parking spaces and was settled on a confidential basis. Id. at 2. The parking spaces are again at issue in the instant matter. Id. Plaintiff states that "as a direct and proximate result of Defendant's actions in redesigning the parking spaces, Plaintiff can no longer park in a space that would give him close access to Defendant's facility." Id. Defendant answered the complaint on May 22, 2012 [ECF No. 5] and the Court held an Early Neutral Evaluation ("ENE") on July 2, 2012. ECF No. 9.
On November 19, 2012, Plaintiff contacted chambers via email to request that the November 26, 2012 deadline to lodge a joint discovery plan with chambers be continued. ECF No. 20. In support, Plaintiff stated that he did not receive the Court's November 2, 2012 Order Directing Rule 26 Compliance and Setting Case Management Conference [ECF No. 18] until November 16, 2012, when opposing counsel provided him with a copy during their meet and confer. ECF No. 20. The request was denied by the Court as Plaintiff failed to properly file the request and because Plaintiff admitted to having received the order setting the deadline which was mailed to his correct address and provided to him by opposing counsel. Id. Defendant filed its Initial Disclosures on November 26, 2012 and filed a motion to dismiss with a January 7, 2013 hearing date in front of Judge William Q. Hayes on November 30, 2012. ECF Nos. 21 & 22. The Court held a telephonic CMC on December 5, 2012 [ECF Nos. 24 & 25] and Plaintiff filed a motion to substitute counsel (Mr. Craig Castle) on December 14, 2012 [ECF No. 26] that was granted on December 26, 2012 [ECF No. 27].
On January 2, 2013, Plaintiff filed an Ex Parte Motion to Continue Hearing of Defendant's Motion to Dismiss. ECF No. 28. On January 3, 2013, Judge William Q. Hayes referred the pending Motion to Dismiss [ECF No. 22] and Ex Parte Motion to Continue Hearing of Defendant's Motion to Dismiss [ECF No. 28] to Magistrate Judge Barbara L. Major. ECF No. 30. The Court granted the continuance on January 7, 2012 [ECF No. 31] and on February 25, 2013, entered an Order granting in part and denying in part Defendant's motion. ECF No. 38. In that order, the Court denied Defendant's request to dismiss the case or to preclude Plaintiff from introducing evidence on certain matters, but granted Defendant's request for monetary sanctions. Id. at 5-7. Specifically, the Court ordered Plaintiff to pay Defendant $2,035.00 by March 18, 2013 and to file a Notice of Payment with the Court by March 22, 2013. Id. at 7. Plaintiff was warned that "[f]ailure to pay said sum may result in the imposition of additional sanctions." Id.
On March 22, 2013, Plaintiff filed an Ex Parte Motion to Extend Time to Make Payment of Monetary Sanctions. ECF No. 40. Plaintiff sought an additional 120 days to comply with the Court's order due to financial hardship. Id. at 3. The Court granted Plaintiff's motion on March 25, 2013. Shortly after the order issued, defense counsel contacted the Court and stated that she was completing an opposition to Plaintiff's motion that she planned to file and the chamber's law clerk stated that was acceptable. The next day, Ms. Pat Cartwright called from defense counsel's office to obtain a hearing date for the opposition. The chamber's law clerk provided Ms. Cartwright with a hearing date and informed her that at this point, Defendant needed to file a motion for reconsideration instead of an opposition. Ms. Cartwright indicated that she understood, but instead of filing a motion for reconsideration, Defendant filed an opposition/motion to dismiss on March 26, 2013. ECF No. 42; Def.'s Mot.at 4. The Court issued an order striking Defendant's opposition/motion to dismiss and setting a deadline to file a motion for reconsideration as instructed and/or a motion to dismiss. ECF No. 43.
Defendant timely file a motion for reconsideration and motion to dismiss on March 28, 2013. Def.'s Mot. & MTD.
MOTION FOR RECONSIDERATION
Pursuant to Local Rule 7.1(i)(1), a party may apply for reconsideration "[w]henever any motion or any application for any order or other relief has been made to any judge and has been refused in whole or in part...." S.D. Cal. Civ.L.R. 7.1(i). The party seeking reconsideration must show "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." Id. Local Rule 7.1(i)(2) permits motions for reconsideration within "twenty-eight (28) days of the entry of the ruling." Additionally, pursuant to Federal Rule of Civil Procedure ("FRCP") 59(e), a party may file a "motion to alter or amend a judgment . . . no later than 28 days after the entry of the judgment."
In the motion for reconsideration, Defendant complains that it did not have an opportunity to oppose Plaintiff's ex parte motion to extend time to pay the monetary sanctions imposed by the Court. Def.'s Mot. at 5. The Court finds this to be an acceptable basis for a motion for reconsideration. However, after considering Defendant's ...