Pinzon v. Jensen et al

Filing 87

ORDER VACATING the 2/21/2012 hearing on dismissal for lack of prosecution set before Chief Judge Anthony W. Ishii, and FURTHER DENYING plaintiff's Motions for Reconsideration, documents 84 and 85 . Plaintiff's Motion to Amend will be addressed by Magistrate Judge Sheila K. Oberto; order signed by Chief Judge Anthony W. Ishii on 2/16/2012. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ABRAHAM G. PINZON,

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Plaintiff,
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v.
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RON JENSEN, RON JENSEN
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CONSTRUCTION, PINECREST
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MARKET, DAN VAUGHN, and DOES 1- )
50,
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Defendants.
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____________________________________ )

CIV-F-08-1543 AWI SKO
ORDER VACATING HEARING
DATE OF FEBRUARY 21, 2012 AND
DENYING MOTIONS FOR
RECONSIDERATION
(Docs. 84 and 85)

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Defendant Dan Vaughn was renovating his house. Defendant Ron Jensen was the general

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contractor on the project. In July 2006, Vaughn hired Plaintiff Abraham Pinzon to do tile work

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as part of the renovation. Vaughn paid Pinzon weekly, often taking money from the cash register

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at Defendant Pinecrest Market where Vaughn was the part owner/general manager. On October

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10, 2006, Vaughn fired Pinzon. Pinzon alleges that Vaughn did not pay him his full wages and

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further made threatening/racially charged remarks.

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Pinzon first filed suit in small claims court. The court found for Defendants. Pinzon then

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filed suit in the Eastern District of California, alleging racial discrimination. Defendants Ron

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Jensen and Ron Jensen Construction have filed no answer to the complaint. Pinzon is

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proceeding pro se and sought to have counsel appointed by the court. Magistrate Judge Oberto

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denied Pinzon’s motion. Doc. 69. Pinzon sought reconsideration, which was denied. Doc. 75.

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Vaughn and Pinecrest Market made motions for summary judgment. Pinzon filed an opposition

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to Vaughn’s motion but no opposition to Pinecrest Market’s motion. The court found the

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opposition insufficient as it was not backed by evidence and granted him an additional
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opportunity to provide an opposition in light of his pro se status. Doc. 73. Pinzon did not do so,

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and the motions were taken under submission without oral argument. The court ultimately

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granted summary judgment in favor of both Vaughn and Pincrest Market. Doc. 76. The court

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then required Pinzon to take action with respect to his suit against Jensen and Ron Jensen

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Construction. Pinzon failed to do so and a hearing on dismissal for lack of prosecution was

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scheduled for February 21, 2012.

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Pinzon has now filed three motions: a motion to amend his complaint to include

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allegations of disability-based discrimination, a motion to reconsider denial of appointed counsel,

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and a motion to reconsider grant of summary judgment. Docs. 83, 84, and 85. A motion to

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amend the complaint is properly addressed to the Magistrate Judge. This order addresses the two

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reconsideration motions. “Reconsideration is appropriate if the district court (1) is presented

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with newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law. There may also be other, highly

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unusual, circumstances warranting reconsideration.” School Dist. No. 1J Multnomah County v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), citations omitted.

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In the prior order, the court determined that “The facts of this case are straightforward and

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the disputes are ones of credibility. There are no novel or complex issues of law.” Doc. 75, at

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4:21-22. Pinzon argues “Defense states to this Court ‘case is not a complex’ case, yet tells Court

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it would be a 4-5 day trial.” Doc. 84, at 1:25-26. The fact that a trial may last a few days does not

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necessarily mean that it involves unduly difficult issues. As stated, this is a relatively

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straightforward case concerning (presumably) conflicting testimony from the parties. Pinzon

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himself states “Plaintiff can articulate his claims all he would need is an opportunity.” Doc. 84, at

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1:25-26. There is insufficient grounds to appoint counsel.

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Pinzon asks for reconsideration of summary judgment because no oral argument was held

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before the order was issued. He states, “Plaintiff’s not big on argument on paper....There has

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been no hearing, no status conference, no settlement conference....This Court would be enabling

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defense to trample Pinzon without providing a summary judgement hearing as the law provides

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for in the Federal Rules of Civil Procedure.” Doc. 85, at1:15-2:1. The court notes that Pinzon
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was given additional time to file a second opposition to the motions for summary judgment; the

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court noted that the first opposition he filed was insufficient to defend against the motions. Doc.

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73. Pinzon made no response and the court ruled on the papers. The Federal Rules of Civil

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Procedure do not guarantee a hearing. The Local Rules of the Eastern District state that motions

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“may be submitted upon the record and briefs on file.” Local Rule 230(g). Pinzon was advised

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that the court found the motion suitable for decision without oral argument under Local Rule

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230(g). Doc. 70. The court invited Pinzon to file additional evidence to oppose the summary

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judgment. Pinzon’s failure to respond convinced the court that a hearing would not be helpful in

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this case as Pinzon had nothing more to add.

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It is ORDERED:

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1. The February 21, 2012 hearing on dismissal for lack of prosecution is VACATED.

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2. Pinzon’s motion to reconsider denial of appointed counsel is DENIED.

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3. Pinzon’s motion to reconsider grant of summary judgment is DENIED.

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4. Pinzon’s motion to amend his complaint will be addressed by Magistrate Judge Oberto.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 16, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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