Short v. Sanzberro et al
Filing
37
ORDER Denying Plaintiff's 33 Motion for Reconsideration signed by Judge Oliver W. Wanger on 06/02/2011. (Flores, E)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
RODNEY L. SHORT,
10
Plaintiff,
11
12
CASE NO. 1:09-cv-00996-OWW-GBC (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
v.
JOHN SANZBERRO, et al.,
13
(Doc. 33)
Defendants.
14
/
15
16
I.
Plaintiff’s Motion for Reconsideration
17
A.
Procedural History
18
Plaintiff Rodney L. Short (“Plaintiff”) is a state civil detainee proceeding pro se and in forma
19
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 10, 2010, Defendants
20
filed a motion to dismiss. Plaintiff failed to file an opposition or a statement of non-opposition to
21
the motion, in compliance with Local Rule 230(l), and on December 1, 2010, the Court ordered
22
Plaintiff to do so within thirty days. On January 11, 2011, Plaintiff filed an opposition to the motion
23
to dismiss however it was not entered on the docket until January 12, 2011. (Doc. 30). On January
24
12, 2011, the Court issued an order dismissing the action with prejudice for failure to prosecute.
25
(Doc. 31). On January 25, 2011, Plaintiff motioned to vacate the Court’s order dismissing the case.
26
(Doc. 33). On May 23, 2011, the Court ordered Defendants to file an opposition or statement of non-
27
opposition to Plaintiff’s motion to vacate. (Doc. 35). On March 25, 2011, Defendants filed an
28
opposition. (Doc. 36).
1
1
B.
Standards for Reconsideration
2
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the
3
district court. The Rule permits a district court to relieve a party from a final order or judgment on
4
grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud . . . of an adverse
5
party, . . . or (6) any other reason justifying relief from the operation of the judgment.” Fed. R. Civ.
6
P. 60(b). The motion for reconsideration must be made within a reasonable time, in any event “not
7
more than one year after the judgment, order, or proceeding was entered or taken.” Id.
8
Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin
9
Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)
10
(en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce
11
the court to reverse its prior decision. See e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634
12
F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514
13
(9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988). The Ninth Circuit has stated that “[c]lause
14
60(b)(6) is residual and ‘must be read as being exclusive of the preceding clauses.’” Corex Corp. v.
15
United States, 638 F.2d 119 (9th Cir. 1981); accord LaFarge Conseils et Etudes, S.A. v. Kaiser
16
Cement, 791 F.2d 1334, 1338 (9th Cir. 1986).
17
‘extraordinary circumstances.’” Id. When filing a motion for reconsideration, Local Rule 230(j)(3)
18
& (4) requires a party to show the “new or different facts or circumstances are claimed to exist which
19
did not exist for the motion; and . . . why the facts or circumstances were not shown at the time of
20
the prior motion.”
Accordingly, “the clause is reserved for
21
In his motion for reconsideration, Plaintiff argues that his opposition was timely since he
22
filed his opposition a week before the dismissal order was filed. (Doc. 33). Even with the three
23
extra days allotted to account for service of the order pursuant to Rule 6(d) of the Federal Rules of
24
Civil Procedure, Plaintiff fails to demonstrate that filing his opposition thirty-four (34) days after the
25
Court issued the order on December 1, 2010, is timely. Plaintiff fails to demonstrate why the
26
dismissal should be vacated.
27
This Court has conducted a de novo review of this case. Having carefully reviewed the entire
28
file, the Court finds that Plaintiff failed to submit a timely objection and finds that its order to
2
1
dismiss Plaintiff’s action for failure to prosecute is supported by the record and by proper analysis.
2
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration (Doc.
3
4
5
33), filed January 25, 2011, is DENIED.
IT IS SO ORDERED.
Dated:
June 2, 2011
emm0d6
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
