United States District Court, E.D. California
ORDER DENYING MOTIONS FOR RECONSIDERATION (ECF Nos.
S. Austin UNITED STATES MAGISTRATE JUDGE
is a prisoner proceeding pro se and in forma pauperis with
this civil rights action pursuant to 42 U.S.C. § 1983.
March 15, 2017, Plaintiff filed objections to the court's
order of March 2, 2017, (ECF No. 177), and on March 27, 2017,
Plaintiff filed objections to the court's order of
February 3, 2017. (ECF No. 183.) The court construes
Plaintiff's objections as motions for reconsideration of
the court's orders.
MOTION FOR RECONSIDERATION
60(b) allows the Court to relieve a party from an order for
“(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; or
(6) any other reason that justifies relief.”
Fed.R.Civ.P. 60(b). Rule 60(b)(6) “is to be used
sparingly as an equitable remedy to prevent manifest
injustice and is to be utilized only where extraordinary
circumstances . . .” exist. Harvest v. Castro,
531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks
and citation omitted). The moving party “must
demonstrate both injury and circumstances beyond his control
. . . .” Id. (internal quotation marks and
citation omitted). In seeking reconsideration of an order,
Local Rule 230(k) requires Plaintiff to show “what new
or different facts or circumstances are claimed to exist
which did not exist or were not shown upon such prior motion,
or what other grounds exist for the motion.”
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 Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotations marks and citations omitted, and
“[a] party seeking reconsideration must show more than
a disagreement with the Court's decision, and
recapitulation . . . ” of that which was already
considered by the Court in rendering its decision, ”
U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,
1131 (E.D. Cal. 2001). To succeed, a party must set forth
facts or law of a strongly convincing nature to induce the
court to reverse its prior decision. See Kern-Tulare
Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665
(E.D. Cal. 1986), affirmed in part and reversed in part on
other grounds, 828 F.2d 514 (9th Cir. 1987).
requests reconsideration of the court's orders of
February 3, 2017, and March 2, 2017.
court's order of February 3, 2017, denied three of
Plaintiff's motions: (1) motion for a 90-day extension of
the discovery deadline, filed on January 26, 2017 (ECF No.
159); (2) motion for leave to supplement the complaint, filed
on February 1, 2017 (ECF No. 162), and (3) motion for a
90-day extension of the discovery deadline, filed on February
1, 2017 (ECF No. 163).
court's order of March 2, 2017, denied three of
Plaintiff's other motions: (1) motion for 90-day
extension of time to submit Fifth Amended Complaint, filed on
February 9, 2017 (ECF No. 166), (2) motion to supplement the
complaint with submission of Fifth Amended Complaint, filed
on February 16, 2017 (ECF No. 171), and (3) motion to amend
and supplement the complaint, filed on February 22, 2017 (ECF
of Plaintiff's motions listed above were denied as
premature because at the time Plaintiff filed the motions,
findings and recommendations were pending recommending that
Defendant Rebel's motion to dismiss be granted, with
leave to amend; that Defendant Ziomek's motion for
judgment on the pleadings be granted, with leave to amend;
and that Defendant Mundunuri's motion for judgment on the
pleadings be granted. The court could not properly consider
Plaintiff's six motions until after the
resolution of the findings and recommendations. Therefore,
Plaintiff's six motions were premature.
court has thoroughly reviewed Plaintiff's objections and
finds that she has not set forth facts or law of a strongly
convincing nature in her motions for reconsideration to
induce the court to reverse its prior decisions. Therefore,
Plaintiff's motions for reconsideration shall be denied.