Smith v. Brown et al

Filing 10

ORDER DENYING 9 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 4/20/2009. (Figueroa, O)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. EDMUND G. BROWN, JR., et al., Defendants. _____________________________/ James E. Smith ("plaintiff") is a state prisoner proceeding pro se in this civil rights action. Plaintiff filed this action on January 20, 2009. (Doc. 1.) On February 4, 2009, plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. 636(c). (Doc. 3.) I. RELEVANT PROCEDURAL HISTORY On February 23, 2009, pursuant to 28 U.S.C. 1915(g), the court issued an order finding plaintiff ineligible to proceed in forma pauperis and ordering plaintiff to pay the $350.00 filing fee in full within thirty days. (Doc. 4.) The thirty day period expired, and plaintiff failed to pay the filing fee. On March 30, 2009, this action was dismissed without prejudice by the undersigned for plaintiff's failure to obey the court's order to pay the filing. (Doc. 6.) On April 17, 2009, plaintiff filed a motion for reconsideration. (Doc. 9.) II. MOTION FOR RECONSIDERATION Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin 1 JAMES E. SMITH, Plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION (Doc. 9.) 1:09-cv-00139-GSA-PC IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). The Local Rules provide that when filing a motion for reconsideration, a party show that the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." Local Rule 78-230(k)(3). Plaintiff argues that under Federal Rules of Procedure 55(c) and 60(b), the court was without authority to render judgment because defendants failed to respond to the summons after being served. Plaintiff also argues that the Federal Rules should be "liberally construed to effectuate the general provision of seeing that cases are tried on the merits and to dispense with technical procedur[e]." Plaintiff claims that he served process as required by Rule 4, but defendant refused to acknowledge or respond to the summons. Because plaintiff's case was dismissed for his failure to pay the filing fee, his arguments are without merit. It is of no consequence here whether plaintiff properly served the summons or whether defendant refused to respond. III. CONCLUSION Based on the foregoing, the court finds that plaintiff has not shown good cause or any new or different facts or circumstances to warrant reconsideration by the court of its order dismissing this action. Therefore, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration is DENIED. IT IS SO ORDERED. Dated: 6i0kij April 20, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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