United States District Court, E.D. California
September 30, 2018, the court denied plaintiff's motion
to withdraw his consent to a magistrate judge. ECF No. 101.
Plaintiff now moves for reconsideration of that order under
Federal Rules of Civil Procedure Rule 60 and Local Rule 230.
ECF No. 114.
a prisoner civil rights case. On July 27, 2015, Kenneth Wayne
Parks, proceeding pro se, filed the standard form completed
to indicate his consent to the jurisdiction of a magistrate
judge. Consent, ECF No. 4. On February 3, 2017, defendants
declined to proceed before a magistrate judge. ECF No. 44. On
October 2, 2017, the parties filed a joint status report in
which the plaintiff, now represented by counsel, stated,
“Plaintiff does not agree to try this case before the
Magistrate Judge.” JSR, ECF No. 68 at 3. On March 28,
2018, the defendants filed a statement of consent to the
magistrate judge. ECF No. 82. This court issued an order on
April 24, 2018, reassigning the case to the magistrate judge.
ECF No. 84. The same day, the plaintiff filed a notice
declining the jurisdiction of the magistrate judge. ECF No.
85. Plaintiff's counsel also submitted a supporting
declaration alerting the court to the earlier refusal to
proceed in front of the magistrate judge asserted in the
joint status report of October 2, 2017. ECF No. 86
¶¶ 1, 7, 10.
magistrate judge construed plaintiff's filing as a motion
to revoke consent to magistrate judge jurisdiction and issued
findings and recommendations to deny the motion, finding
neither good cause nor extraordinary circumstances justifying
the request. See Findings at 12-13, ECF No. 88;
see also 28 U.S.C. § 636(c)(4) (“The
court may, for good cause shown on its own motion, or under
extraordinary circumstances shown by any party, vacate a
reference of a civil matter to a magistrate judge under this
subsection.”); Fed.R.Civ.P. 73(b)(3) (“On its own
for good cause--or when a party shows extraordinary
circumstances--the district judge may vacate a referral to a
magistrate judge under this rule.”); Dixon v.
Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (articulating
standard for withdrawing consent to trial before magistrate
5, 2018, the magistrate judge referred the case back to the
undersigned with a recommendation to dismiss one defendant
and give a newly added defendant an opportunity to consent to
or decline magistrate judge jurisdiction. ECF No. 88 at 13.
The plaintiff at that point formally moved to vacate the
referral to the magistrate judge. ECF No. 91. While the
motion was pending, the newly served defendant filed her
consent to magistrate judge jurisdiction. ECF No. 97.
September 30, 2018, the court adopted the magistrate
judge's findings and recommendations and denied the
motion to vacate. Order, ECF No. 101. In the interim, on
August 28, 2019, the Ninth Circuit decided Gilmore v.
Lockard, 936 F.3d 857 (2019), which is relevant for
reasons explained below. On September 9, 2019, plaintiff
filed the pending motion for reconsideration.
may relieve a party from an order under Federal Rule Civil
Procedure 60 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 ...