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Garduno v. Rogel

United States District Court, Ninth Circuit

August 26, 2013

JESSE GARDUNO, Plaintiff,
v.
EDGAR ROGEL; J. DUENAS; L. CESENA; R. FREGOSO; and SHEILA NAGARAJ, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

On January 3, 2013, Plaintiff initiated this action by filing a Complaint containing Bivens and RICO claims against all Defendants. (ECF No. 1). Plaintiff alleged that "Defendants exhibited a reckless indifference and wanton disregard for [his] First, Fourth, and Fifth Amendment rights" by stopping him at the border and subsequently bringing criminal charges against him. Id. at 3.

On July 16, 2013, Defendants filed the Motion to Dismiss, which stated: "Federal Defendants... bring its motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure." (ECF No. 7 at 1). In the Memorandum of Points and Authorities, Defendants moved for dismissal of the RICO claim (claim two) as to all Defendants, and dismissal of the Bivens claim (claim one) only as to Defendant AUSA Naganaj. (ECF No. 7-1 at 4).

Plaintiff did not file an opposition or otherwise respond to the Motion to Dismiss.

On August 21, 2013, the Court issued an Order granting Defendants' unopposed Motion to Dismiss, and dismissing the Complaint without prejudice. (ECF No. 8). Later that day, the Clerk of the Court issued Judgment in favor of Defendants. (ECF No. 9).

Federal Rule of Civil Procedure 60(a) provides: "The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice." Fed.R.Civ.P. 60(a).

Pursuant to the unopposed Motion to Dismiss filed by Defendants and Rule 60(a), the Court hereby VACATES the August 21, 2013 Judgment (ECF No. 9). The Clerk of the Court shall reopen the case. The August 21, 2013 Order (ECF No 8) is amended as follows: "IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendants (ECF No. 7) is GRANTED. Claim one of the Complaint is DISMISSED without prejudice as to Defendant AUSA Nagaraj. Claim two of the Complaint is DISMISSED without prejudice as to all Defendants."

IT IS SO ORDERED.


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