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Kenney v. City of San Diego

United States District Court, S.D. California

September 25, 2014

JOHN B. KENNEY, Plaintiff,
v.
CITY OF SAN DIEGO, et al., Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are (1) the Motions for Reconsideration, filed by Plaintiff (ECF Nos. 251, 253, 255); (2) the Motion to Sever and Dismiss Moving Defendant and All Other Improperly Joined Defendants, filed by Defendant Pinkerton Governmental Services, Inc. ("PGS") (ECF No. 248-5); (3) the Motion to Declare Plaintiff a Vexatious Litigant, filed by PGS (ECF No. 248-6); (4) the Motion to Set Aside Default, filed by PGS (ECF No. 248); (5) the Motions to Quash Service of Process, filed by PGS, SAIC USA, Inc., Gordon L. Pettus and Gail Pettus (ECF Nos. 195, 248-2, 263); and (6) the Motions to Dismiss the First Amended Complaint, filed by numerous Defendants (ECF Nos. 190, 191, 195, 200, 231, 239, 245, 248-4, 259).

I. Background

On January 30, 2013, Plaintiff John B. Kenney, proceeding pro se, filed a Complaint in this Court. (ECF No. 1). On September 20, 2013, the Court granted in part and denied in part the motion to dismiss the Complaint filed by Defendants City of San Diego ("City"), San Diego Police Department ("SDPD"), William Lansdowne, Jerry Sanders, Scott Thompson, Kaseyelee Lawrence, David Stum, and Jan Goldsmith (collectively, "City Defendants"). (ECF No. 20). In the same Order, the Court granted the motion to dismiss filed by the San Diego Sheriff's Department ("Sheriff's Department"). Id.

On October 21, 2013, Plaintiff filed a First Amended Complaint, which is the operative pleading. (ECF No. 21). On January 28, 2014, the Court granted the motions to dismiss portions of the First Amended Complaint filed by the City Defendants and the Sheriff's Department. (ECF No. 33). In the January 28, 2014 Order, the Court listed the nine causes of action against certain City Defendants which were not dismissed. See id. at 22-23.

On June 30, 2014, the Court issued an Order which dismissed claims against certain Defendants without prejudice and stated, "[a]ny further amendment or supplement to the operative pleading must be done by filing a motion for leave to amend the First Amended Complaint, accompanied by a copy of the proposed amended pleading, which shall be entitled Second Amended Complaint.'" (ECF No. 228 at 11).

On July 2, 2014, the Court issued an Order striking certain proofs of service for failure to comply with Federal Rule of Civil Procedure 4(b), ordering the Clerk to mail Plaintiff a copy of the Summons issued on the First Amended Complaint, and granting Plaintiff an extension of time of 120 days to effectuate service on all unserved Defendants properly-named Defendants in the First Amended Complaint. (ECF No. 230). In the July 2, 2014 Order, the Court set aside the Clerk's entries of default based upon the stricken proofs of service pursuant to Federal Rule of Civil Procedure 55(c).

On July 21, 2014, the Court issued an Order striking certain proofs of service for failure to comply with Federal Rule of Civil Procedure 4(b), and granting Plaintiff an extension of time of 90 days to file a motion for leave to amend the First Amended Complaint. (ECF No. 246).

The Court presumes familiarity with the Orders and filings in this action.

II. Motions for Reconsideration

Plaintiff requests that the Court reconsider and/or clarify the rulings in the June 30, 2014, July 2, 2014, and July 21, 2014 Orders. (ECF Nos. 251, 253, 255). Plaintiff contends that the Court erroneously dismissed certain Defendants and denied Plaintiff leave to amend the First Amended Complaint. Plaintiff contends that the Court erroneously struck proofs of service, when service was properly effectuated.

Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters. Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quotation omitted). "[A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Marlyn Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quotation omitted).

After review of the Motions for Reconsideration and the prior Orders issued in this case, the Court concludes that Plaintiff does not present the Court with newly discovered evidence, does not establish that the Court committed clear error, and does not establish an intervening change in the law. Accordingly, the Motions for Reconsideration are denied.

As stated in the June 30, 2014, July 2, 2014, and July 21, 2014 Orders, any further amendment the First Amended Complaint must be done by filing a motion for leave to amend the First Amended Complaint, accompanied by a copy of the proposed amended pleading, which shall be entitled "Second Amended Complaint." Any amended pleading must be complete in itself without reference to any prior pleading. See S.D. Cal. Civ. L.R. 15.1. If any such motion for leave to amend is properly filed, and ...


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