Parks v. Rolfing

          ORDER

         On 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.

         I. Factual Background

         This is 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.

         The 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 judge).

         On May 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.

         On 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.

         II. Legal Standard

         A court 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 ...