United States District Court, E.D. California
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION AND DENYING PLAINTIFF’S MOTION FOR
LEAVE TO FILE A SECOND OPPOSITION/SURREPLY TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOCS. 87,
LAWRENCE J. O’NEILL UNITED STATES CHIEF DISTRICT JUDGE
Felipe Garcia, a state prisoner proceeding pro se
and in forma pauperis, filed this civil rights
action pursuant to 42 U.S.C. § 1983 on April 25, 2013.
On October 1, 2015, Defendants filed a motion for summary
judgment. (Doc. 60.) Plaintiff filed an opposition on October
19, 2015, and Defendants filed their reply on November 2,
2015. (Docs. 63, 72.)
motion to for summary judgment was deemed submitted pursuant
to Local Rule 230(l) on November 2, 2015. However,
on November 12, 2015, Plaintiff filed another opposition (the
“surreply”). (See Doc. 73.) Because
Plaintiff does not have a right to file a surreply under the
Local Rules or the Federal Rules of Civil Procedure and
Plaintiff did not obtain leave of court to file a surreply,
on May 18, 2016, the Court struck Plaintiff’s surreply
from the docket. (Doc. 85.)
18, 2016, Plaintiff filed a motion for reconsideration of the
Magistrate Judge’s order granting Defendants’
motion to strike the surreply (Doc. 88) and a motion seeking
leave to file a surreply to supplement his opposition with
additional evidence and to respond to arguments raised for
the first time in Defendants’ reply (Doc. 87).
PLAINTIFF’S MOTION FOR RECONSIDERATION IS
seeking reconsideration should demonstrate “new or
different facts or circumstances [which] are claimed to exist
which did not exist or were not shown upon such prior motion,
or what other grounds exist for the motion.” E.D. Cal.
L. R. 230(j); see United States v. Alexander, 106
F.3d 874, 876 (9th Cir. 1997) (reconsideration appropriate
for a change in the controlling law, facts, or other
circumstances; a need to correct a clear error; or a need to
prevent manifest injustice); Gordon v. Astrue, No.
2:10-CV-1198-GGH, 2011 WL 5041217 at *1 (E.D. Cal. Oct. 24,
2011) (“[D]ecisions on legal issues made in a case
should be followed unless there is substantially different
evidence[, ] new controlling authority, or the prior decision
was clearly erroneous and would result in injustice.”)
(internal quotation omitted). “To succeed [on a Rule
59(e) motion], a party must set forth facts or law of a
strongly convincing nature to induce the court to reverse its
prior decision.” United States v. Westlands Water
Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2011).
Rule 59(e) permits a district court to reconsider and amend a
previous order, the rule offers an extraordinary remedy, to
be used sparingly in the interests of finality and
conservation of judicial resources . . . A Rule 59(e) motion
may not be used to raise arguments or present evidence for
the first time when they could reasonably have been raised
earlier in the litigation.” Carroll v.
Nakatani, 342 F.3d 943, 945 (9th Cir. 2003) (internal
citation omitted); see also McQuillion v. Duncan,
342 F.3d 1012, 1013 (9th Cir. 2003); McDowell v.
Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)
(a Rule 59(e) motion “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.”) (internal quotations omitted).
motion for reconsideration may not be used to get a second
bite at the apple.” Campion v. Old Repub. Home
Protection Co., Inc., No. 09-CV-00748-JMA(NLS), 2011 WL
1935967, at *1 (S.D. Cal. May 20, 2011). The purpose of Rule
59(e) is not to “give an unhappy litigant one
additional chance to sway the judge. [A]rguments and evidence
[that] were previously carefully considered by the Court, [ ]
do not provide a basis for amending the judgment.”
Kilgore v. Colvin, No. 2:12-CV-1792-CKD, 2013 WL
5425313 at *1 (E.D. Cal. Sept. 27. 2013) (internal quotations
omitted). It is not a method by which to raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier, see School Dist. No.
1J, Multnomah County, Or. v. AC and S, Inc., 5 F.3d
1255, 1263 (9th Cir.1993), or to reargue an issue, Am.
Ironworks & Erectors, Inc. v. N. Am. Constr. Corp.,
248 F.3d 892, 899 (9th Cir. 2001).
doubts or disagreement about the wisdom of a prior
decision” is insufficient to warrant granting a Rule
59(e) motion. Campion, 2011 WL 1935967 at *1
(quoting Hopwood v. Texas, 236 F.3d 256, 273 (5th
Cir. 2000)). For a decision to be considered “clearly
erroneous” it must be “more than just maybe or
probably wrong; it must be dead wrong.” Id. A
“movant must demonstrate a ‘wholesale disregard,
misapplication, or failure to recognize controlling
precedent.’” Id. (quoting Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
Plaintiff does not present new law or facts as a basis for
altering the Court’s judgment. (Doc. 88.) Rather,
Plaintiff contends the Court made an error of law by striking
his surreply. (Id.) The fact that Plaintiff is
disappointed with the Court’s decision and seeks
“one additional chance to sway the [Court]” by
asking the Court to re-consider “arguments and evidence
[that] were previously carefully considered by the Court,
” is not enough to “provide a basis for amending
the judgment.” Kilgore, 2013 WL 5425313 at *1;
see also United States v. Rezzonico, 32 F.Supp.2d
1112, 1116 (D. Az. 1998) (a motion for reconsideration
“should not be used to ask the court to rethink what
the court has already though through - rightly or
wrongly”) (internal citations and quotations omitted).
Because Plaintiff “‘has brought up nothing new
--except his displeasure -- this Court has no proper basis
upon which to alter or amend the order previously entered.
The judgment may indeed be based upon an erroneous view of
the law, but if so, the proper recourse is appeal -- not
reargument.’” Kilgore, 2013 WL 5425313
at *2 (quoting Frito-Lay of Puerto Rico, Inc. v.
Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981));
Gordon, 2011 WL 5041217 at *2 (quoting
Frito-Lay, 92 F.R.D. at 390).
Plaintiff has not offered any valid basis upon which the
Court should alter the Magistrate Judge’s order
striking his improperly filed surreply, Plaintiff’s
motion for reconsideration is DENIED.
PLAINTIFF’S MOTION FOR LEAVE TO FILE A SURREPLY IS
do not have the right to file surreplies and motions are
deemed submitted when the time to reply has expired. Local
Rule 230(l). The Court generally views motions for
leave to file a surreply with disfavor. Hill v.
England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1
(E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA,
LLC, 366 F.Supp.2d 1190, 1197 (N.D.Ga. 2005)). However,
district courts have the discretion to either permit or
preclude a surreply. See U.S. ex rel. Meyer v. Horizon
Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009)
(district court did not abuse discretion in refusing to
permit “inequitable surreply”); JG v. Douglas
County School Dist., 552 F.3d 786, 803 n.14 (9th Cir.
2008) (district court did not abuse discretion in denying
leave to file ...