Cohea v. Adams et al

Filing 78

ORDER Denying Plaintiff's 77 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 09/29/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,

CASE NO. 1:08-cv-01186-LJO-SMS PC

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Plaintiff,
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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.
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D. ADAMS, et al.,

(ECF No. 77.)

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Defendants.
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/
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On August 3, 2011, an order issued dismissing Defendant N. Hicenbothem from this action

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for Plaintiff’s failure to effect service of process. (ECF No. 74.) Plaintiff filed a motion for

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reconsideration on September 7, 2011. (ECF No. 77.)

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. The Rule permits a district court to relieve a party from a final order or judgment on

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grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . ., (3) fraud . . . misrepresentation, or misconduct by an opposing party, . . . or (6) any

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other reason that justifies relief.” Fed. R. Civ. P. 60(b).

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released or discharged; . . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b).

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Where none of these factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950

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F.2d 1437, 1442 (9th Cir. 1991).

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order

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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation

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omitted). The moving party “must demonstrate both injury and circumstances beyond his control

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. . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff 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,” and “why the facts or circumstances were not shown at the time of the prior motion.”

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

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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

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present evidence for the first time when they could reasonably have been raised earlier in the

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litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009) (internal quotations marks and citations omitted) (emphasis in original).

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Plaintiff argues that the Court erred in dismissing Defendant Hicinbothem from this action.

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The complaint does not allege a single defendant named N. Hicinbothem and, therefore, the Court

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should serve both employees named D. Hicinbothem. A review of the pleadings shows that Plaintiff

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listed one individual named N. Hicinbothem in his complaint. (Compl. 3, ECF No. 1.) Additionally,

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the Court notes that the order requiring Plaintiff to file an amended complaint or notify the Court that

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he was willing to proceed on the claims found to be cognizable listed a single defendant named

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Hicinbothem. (ECF No. 12.) Plaintiff filed a response to the order on March 27, 2009, and an

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objection to findings and recommendations recommending the action be dismissed for Plaintiff’s

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failure to comply with a court order on April 13, 2009. (ECF Nos. 13, 15.) A review of these

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documents shows that Plaintiff did not mention any error in the order finding only one defendant

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named Hicinbothem. The Court finds that Plaintiff’s complaint only alleged claims against a single

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defendant named Hicinbothem and the Court did not err in dismissing the defendant because

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Plaintiff failed to identify the individual to be served.

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Finally, Plaintiff’s accusations of misconduct by the defense counsel and the Court are not

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extraordinary circumstances that would entitle Plaintiff to reconsideration of the order. Plaintiff’s

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opposition is devoid of any ground entitling Plaintiff to reconsideration of the Court’s order and is

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HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
b9ed48

September 29, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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