United States District Court, C.D. California
JOSE M. VILLAGORDOA BERNAL
HECTOR MANUEL RODRIGUEZ,
Present: The Honorable CHRISTINA A. SNYDER JUDGE.
DEFENDANTS’ MOTION FOR RECONSIDERATION OF THE
COURT’S RULING ON JUNE 10, 2016 (DKT. 39, FILED JUNE
CHRISTINA A. SNYDER JUDGE.
Court finds this motion appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; C.D. Cal. Local
Rule 7-15. Accordingly, the hearing date of August 1, 2016 is
vacated, and the matter is hereby taken under submission.
INTRODUCTION & BACKGROUND
court is in receipt of defendants’ motion for
reconsideration of the Court’s June 10, 2016 order (the
“June 10, 2016 order”). Dkt. 39
(“Motion”). Among other things, the Court’s
June 10, 2016 order remanded a related state court action
(“the Superior Court action”), Bernal v.
Rodriguez, No. DS 1515538 (Cal. Super. Ct. Filed October
23, 2015), to the San Bernardino County Superior Court on the
grounds that defendants’ removal was untimely.
See Case No. 5:16-cv-01081-CAS-DTB, Docket Entry No.
7 (June 10, 2016 order). In the instant motion for
reconsideration, defendants argue that the Court “was
not aware of all facts regarding the filing of the initial
[notice of] removal, ” and that sufficient grounds
exist for the Court to reconsider its decision to remand the
Superior Court action due to defendants untimely removal.
Motion at 3. Having carefully considered defendants’
arguments, the Court finds and concludes as follows.
to Federal Rule of Civil Procedure 60(b), “the court
may relieve a party . . . from a final judgment, order, or
proceeding for ... [any] reason that justifies relief.”
Motions for reconsideration are justified where there is the
availability of new evidence or the need to correct a clear
error or prevent manifest injustice. See Page v.
Something Weird Video, 960 F.Supp. 1438, 1440 (C.D. Cal.
1996). “Of course, in any ‘newly discovered
evidence’ situation there is the vital discretion
element in which the Judge inescapably has to measure the
impact of the ‘new’ against the whole
record.” Laguna v. Royalty Co. v. Marsh, 350
F.2d 817, 824 n.13 (5th Cir. 1965). Under Central District
Civil Local Rule 7-18, “[a] motion for reconsideration
of the decision on any motion may be made only on the grounds
of (a) a material difference in fact or law from that
presented to the Court before such decision that in the
exercise of reasonable diligence could not have been known to
the party moving for reconsideration at the time of such
decision, or (b) the emergence of new material facts or a
change of law occurring after the time of such decision, or
(c) a manifest showing of a failure to consider material
facts presented to the Court before such decision. No motion
for reconsideration shall in any manner repeat any oral or
written argument made in support of or in opposition to the
original motion.” See C.D. Cal. L.R. 7-18.
instant motion for reconsideration, defense counsel argues
that a “technical issue . . . prevented the timely
filing of the [notice of] removal.” Motion at 3.
Specifically, defense counsel avers that he “could not
locate his CM/ECF log[-]in in order to [sic] for him
to be able to electronically file the removal, ” and
that counsel accordingly called the CM/ECF help desk on both
Thursday, April 28, 2016, and Monday, May 2, 2016, but failed
to obtain the relevant information. Id. In light of
these facts, counsel avers that the Court’s decision to
remand the case “was manifestly unjust as Counsel was
unable to obtain his log in informatioin [sic] and
the help desk did not return his phone calls requiring
messages to be left on three separate occassions
[sic] in order for him to obtain his log in
information in order to electronically filed
[sic].” Id. at 4.
defense counsel, whose office is located in Beverly Hills,
California, does not explain why he did not manually
file a timely notice of removal with the Court when it became
apparent that he purportedly did not have access to CM/ECF
due to his inability to “locate” his password. By
his own estimation, counsel was aware of his inability to
access CM/ECF on Thursday, April 28, 2016, well before the
relevant removal deadline of Monday, May 2, 2016. As
explained in the Court’s June 10, 2016 order,
“[t]he removal statute is strictly construed, and any
doubt about the right of removal requires resolution in favor
of remand.” Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992)); Douglass v. Weyerhaeuser Co., 662 F.Supp.
147, 149 (C.D. Cal. 1987) (“The time limitations of
§ 1446(b) are mandatory and the defendant must strictly
comply with them. [Citations.] If [the Superior Court action]
was not timely removed it should be remanded to the state
court.”). Counsel’s inability to
“locate” his CM/ECF password (and apparent
unwillingness to manually file the notice of removal) does
not provide grounds for excusing the untimely removal of the
Superior Court action. Accordingly, defendants’ motion
for reconsideration must be denied.
accordance with the foregoing, defendants’ motion for
reconsideration, dkt. 39, is hereby DENIED.
addition, the Court notes that its June 10, 2016 order put
defendants on notice that “that failure to serve a
responsive pleading in this action (Case No. CV-16-152),
pursuant to Federal Rule of Civil Procedure 12, on or before
Monday, June 20, 2016, may result in the entry of default by
the Clerk of Court pursuant to plaintiff’s application
for entry of default, dkt. 30.” Dkt. 38 (June 10, 2016
Order), at 5. Accordingly, the Court now orders defendants to
file an Answer to the operative complaint in this action by
this Friday, June 24, 2016. If defendants fail to do