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Anthony A. Amerson v. Kindredcare

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


May 6, 2013

ANTHONY A. AMERSON, PLAINTIFF,
v.
KINDREDCARE, INC., DEFENDANT.

The opinion of the court was delivered by: United States Magistrate Judge Joseph C. Spero

ORDER DENYING MOTION FOR RECONSIDERATION Re: Dkt. No. 26

On April 25, 2013, Plaintiff filed a Motion for Reconsideration ("the Motion") of the Court‟s order dismissing Plaintiff‟s complaint on the basis of untimeliness. In that Order, the 15 Court found that there was no equitable tolling because the delay resulted from a lack of diligence 16 on the part of Plaintiff‟s counsel, who was unaware that under Civil Local Rule 5-1(d)(1) a 17 complaint must be manually filed. The Motion is DENIED. 18

In the Motion, Plaintiff does not identify the rule under which he is seeking reconsideration 14 19 of the Court‟s Order. Although Civil Local Rule 7-9 permits a party to bring a motion to 20 reconsider, that rule applies only prior to the entry of judgment. See Civ. L.R. 7-9(a). Thus, the 21 Court assumes that Plaintiff‟s Motion is brought pursuant to Rule 59(e) of the Federal Rules of 22 Civil Procedure.

That rule permits a party to bring a motion to alter or amend judgment no later 23 than 28 days after the entry of judgment. The Clerk issued its order dismissing Plaintiff‟s 24 complaint, and entered judgment in this case, on February 20, 2013.*fn1 Using the rules for 25 computation of time set forth in Rule 6(a)(1) of the Federal Rules of Civil Procedure, Plaintiff‟s 26

Motion was filed 64 days after the entry of judgment, that is 36 days after the deadline for filing a 2 Rule 59(e) Motion had passed. On that basis, the Motion is DENIED. 3

Further, even assuming that the Motion were timely filed, the Court would deny the 4 Motion on the ground that Plaintiff merely repeats his previous argument that the Court should 5 excuse his lack of familiarity with the Rules of this Court. See Garfield v. Astrue, 2009 WL 6 281930, at *1 (N.D.Cal., Feb. 5, 2009). As the court in Garfield explained, "[a] motion under 7 FRCP 59(e) is intended for "highly unusual circumstances‟ and should not be used by losing 8 parties to reargue motions as a matter of course." Id. (quoting McDowell v. Calderon, 197 F.3d 9 1253, 1255 (9th Cir.1999)). 10

Finally, to the extent Plaintiff‟s counsel suggests his delay is excusable based, in part, on 11 the "deficient vagueness in the [e-filing] system‟s acknowledgment procedure, and a somewhat 12 unhurried response by the Office of the Clerk," Plaintiff‟s argument is not well-taken. It is not the Court responsibility of the Clerk‟s Office to instruct Mr. Martin as to the requirements of this Court‟s Rules. Rule 5-1(d)(1) is crystal clear, stating that "[c]complaints, indictments and informations, 15 including superseding indictments and informations, and other case-initiating documents shall be 16 filed and served manually rather than electronically." Civ. L.R. 5-1(d)(1) (emphasis added). In 17 any event, Mr. Martin concedes in his declaration that he received a call back from the Clerk on 18 the same day he left his message. 19

The Motion is DENIED.

IT IS SO ORDERED.


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