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Dustin v. Gipson

United States District Court, E.D. California

September 6, 2017

DALE OWEN DUSTIN, Plaintiff,
v.
CONNIE GIPSON et al., Defendants.

          ORDER DENYING PLAINTIFF'S MOTIONS FOR RELIEF FROM FINAL JUDGMENT (DOC. NOS. 71, 73)

         Plaintiff Dale Owen Dustin is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff commenced this action on December 16, 2013, by filing his complaint in the U.S. District Court for the Northern District of California. On May 16, 2014, the matter was transferred to this court. (See Doc. Nos. 1, 14.)

         On July 28, 2015, the court dismissed this action based on plaintiff's repeated failure to comply with court orders, and judgment was entered on the same day. (See Doc. Nos. 61, 62.) Following dismissal of this action, plaintiff filed an appeal in the United States Court of Appeals for the Ninth Circuit. (Doc. No. 63.) Following referral to this court regarding whether in forma pauperis status should continue for plaintiff's appeal, the Ninth Circuit determined that plaintiff's appeal was frivolous and directed him to pay the required filing fee. (Doc. No. 69.) On December 16, 2015, the Ninth Circuit dismissed plaintiff's appeal for failure to pay the filing fee and issued its mandate. (Doc. No. 70.)

         Over a year later, plaintiff filed two requests in this case, which are now before the court. On October 17, 2016, plaintiff filed a document titled, “Memorandum of Understanding, Motion to Remand/Reinstate Back into Court.” (Doc. No. 71.) Thereafter, on November 18, 2016, plaintiff filed a document titled, “Memorandum of Understanding, Motion to Remand/Reinstate/Vacate Dismissal, As Cause Shown.” (Doc. No. 73.) The court construes plaintiff's filings as motions for reconsideration regarding its final judgment in this case. Because these requests were filed well past the deadline for the filing of a motion to alter or amend the judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure-see Fed. R. Civ. P. 59(e); Carter v. United States, 973 F.2d 1479, 1488 (9th Cir. 1992) (“[T]he district court has no discretion to consider a late rule 59(e) motion.”)-the court will evaluate them as motions for reconsideration brought under Rule 60(b).

         LEGAL STANDARD

         Rule 60(b) of the Federal Rules of Civil Procedure provides in relevant part:

         On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(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;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

         “A motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c). “What constitutes ‘reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties.” Lemoge v. United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009) (quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)).

         Generally speaking, a motion for reconsideration “should not be granted . . . unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)); accord Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).[1] Reconsideration of a prior order 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) (citation omitted); see also Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule ...


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