Moran v. Dovey et al

Filing 179

ORDER Denying Motion For Reconsideration (ECF No. 170 ), signed by Magistrate Judge Stanley A Boone on 5/17/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICOLAS MORAN,
Plaintiff,

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Case No. 1:08-cv-00016-SAB (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(ECF No. 170)
JOHN DOVEY, et al.,
Defendants.

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Plaintiff Nicolas Moran (“Plaintiff”), is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 8, 2012, the Court

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entered judgment in this action in favor of Defendants. (ECF No. 149.) Plaintiff filed a notice of

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appeal on June 28, 2012. (ECF No. 159.) On June 21, 2013, Plaintiff filed a motion for a

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judgment notwithstanding the verdict. (ECF No. 156.) On August 9, 2012, the Court denied

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Plaintiff’s motion.

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reconsideration. (ECF No. 170.)

(ECF No. 169.)

On August 24, 2012, Plaintiff filed a motion for

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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The

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Rule permits a district court to relieve a party from a final order or judgment on grounds of: “(1)

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mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party, . . .

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or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration

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must be made within a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable

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remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances

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. . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. Local Rule 230(j)

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requires Plaintiff to show “what new or different facts or circumstances are claimed to exist

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which did not exist or were not shown upon such prior motion, or what other grounds exist for the

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motion.” “A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (emphasis in original).

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In Plaintiff’s motion to reconsider, he simply restates his prior arguments and does not

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present newly discovered evidence, clear error, or an intervening change in the law. This simply

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does not meet the standard for a motion for reconsideration. Therefore, the motion will be

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denied.

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Moreover, on May 14, 2013, the Ninth Circuit issued an order addressing Plaintiff’s

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motion for mandamus order filed on April 16, 2012. (ECF No. 177.) In that mandamus motion,

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Plaintiff requested that the Ninth Circuit order the district court to rule on its motion for

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reconsideration notwithstanding verdict dated June 21, 2012. The Ninth Circuit denied Plaintiff’s

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mandamus motion as moot as the district had ruled on the Plaintiff’s motion filed June 21, 2012

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on August 9, 2012. In light of the Ninth Circuit’s decision, this is an additional basis to deny his

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motion for reconsideration. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s August 24, 2012 motion for reconsideration is
DENIED.

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IT IS SO ORDERED.

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Dated:
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May 17, 2013

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UNITED STATES MAGISTRATE JUDGE

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