Barry Lamon v. Tilton et al
Filing
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ORDER Denying Plaintiff's Motions for Reconsideration of Orders Denying Motions for Extensions of Amended Pleadings and Discovery Deadlines, signed by Magistrate Judge Sheila K. Oberto on 10/10/12. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BARRY LAMON,
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Plaintiff,
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CASE NO. 1:09-cv-00157-AWI-SKO PC
ORDER DENYING PLAINTIFF’S MOTIONS
FOR RECONSIDERATION OF ORDERS
DENYING MOTIONS FOR EXTENSIONS OF
AMENDED PLEADINGS AND DISCOVERY
DEADLINES
v.
JOHN TILTON, et al.,
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Defendants.
(Docs. 65 and 70)
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Order Denying Motions for Reconsideration
I.
Procedural History
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Plaintiff Barry Lamon, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on January 26, 2009. This action is proceeding on
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Plaintiff’s First Amendment retaliation claim against Defendant Birkholm and Plaintiff’s Eighth
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Amendment medical care claim against Defendants Birkholm, Mayugba, and Schutt.
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Pursuant to the scheduling order filed on September 8, 2011, the deadline to amend the
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pleadings was March 8, 2012, and the discovery deadline was May 8, 2012. (Doc. 37.) On March
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30, 2012, Plaintiff filed a motion seeking to modify the scheduling order to extend the amended
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pleadings deadline, and on May 3, 2012, the Court issued an order denying the motion. (Docs. 57,
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62.) On May 14, 2012, Plaintiff filed a motion seeking a thirty-day extension of time to file a motion
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for reconsideration, and on May 24, 2012, Plaintiff filed a motion seeking to modify the scheduling
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order to extend the discovery deadline. (Docs. 64, 65.) Plaintiff was granted an extension of time
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to file a motion for reconsideration on July 10, 2012. (Doc. 67.)
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On July 11, 2012, the Court denied Plaintiff’s motion to modify the scheduling order to
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extend the discovery deadline and in the order, the Court noted that at the end of his motion, Plaintiff
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requested reconsideration of the order denying his motion to modify the scheduling order as to the
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amended pleadings deadline. (Doc. 68.) Because Plaintiff had separately sought and just been
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granted an extension of time to file a motion for reconsideration relating to the amended pleadings
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deadline, the Court declined to consider his request for reconsideration made at the end of his motion
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relating to the discovery deadline. The Court informed Plaintiff that if he wished to withdraw his
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request for an extension of time to file a motion for reconsideration and proceed with the request for
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reconsideration as set forth in his motion for an extension of the discovery deadline, he could notify
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the Court and it would vacate its order granting additional time and address the request set forth in
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the motion.
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On July 23, 2012, Plaintiff filed objections to the order denying his motion to modify the
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scheduling order to extend the discovery deadline, which is treated as a motion for reconsideration.
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Local Rule 230(j). (Doc. 70.) Defendants filed an opposition on July 27, 2012, and the motion has
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been submitted. Local Rule 230(l). (Doc. 74.)
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II.
Motion for Reconsideration of Order Denying Extension of Discovery Deadline
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A.
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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.”
Legal Standard
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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,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma
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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,
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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s
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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its
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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001); see also In
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re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989) (Rule 60(b)(6) may provide relief
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where parties were confronted with extraordinary circumstances but it does not provide a second
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chance for parties who made deliberate choices).
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B.
Ruling
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Plaintiff disagrees with the order denying his motion to modify the scheduling order to allow
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for further discovery. However, the Court articulated, clearly and plainly, its reasons for denying the
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motion, and in doing so, it relied upon and cited to relevant, binding authority. Fed. R. Civ. P.
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16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992); Zivkovic v.
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Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). While Plaintiff’s desire for
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a different outcome is understandable, he is cautioned that impugning the integrity of the Court will
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not be tolerated. Plaintiff’s motion for reconsideration sets forth no grounds which would entitle him
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to relief from the order and therefore, the motion for reconsideration is denied, with prejudice. Fed.
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R. Civ. P. 60(b)(6); Local Rule 230(j); Marlyn Nutraceuticals, Inc., 571 F.3d at 880; Harvest, 531
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F.3d at 749; Westlands Water Dist., 134 F.Supp.2d at 1131.
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III.
Motion for Reconsideration of Order Denying Extension of Amended Pleadings
Deadline
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In his motion filed on July 23, 2012, Plaintiff’s choice of words is suggestive that he is still
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awaiting a ruling on his motion to modify the scheduling order to extend the amended pleadings
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deadline. (Doc. 70, Motion, 5:9-12 & 5:17-19.) This is not the case, and Plaintiff’s other filings
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relate to reconsideration of that ruling, evidencing Plaintiff’s receipt of the order denying his motion
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to modify the scheduling order to extend the amended pleadings deadline. (Docs. 62, 64, 65.) Thus,
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the Court necessarily treats the language as declining to file another motion for reconsideration and
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requesting that the Court rule on his motion for reconsideration as set forth in the motion filed on
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May 24, 2012. The Court will do so.
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In his May 24 motion, Plaintiff noted that his motion to modify the scheduling order to
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extend the amended pleadings deadline was not denied with prejudice, and he requested that, based
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on his arguments for an extension of the discovery deadline, the Court reconsider its order denying
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his motion to extend the amended pleadings deadline. (Doc. 65, Motion, 13:7-14.)
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That a motion was not expressly denied with prejudice does not relieve Plaintiff of his burden
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as the party moving for reconsideration. A party’s mere disagreement with a court order does not
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suffice to support a motion for reconsideration. Plaintiff’s motion to modify the scheduling order
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to extend the amended pleadings deadline was denied on the grounds that it was untimely and that
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good cause was not shown. Plaintiff has neither demonstrated that the Court erred nor set forth any
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other ground entitling him to reconsideration of the order. Fed. R. Civ. P. 60(b)(6); Local Rule
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230(j); Marlyn Nutraceuticals, Inc., 571 F.3d at 880; Harvest, 531 F.3d at 749; Westlands Water
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Dist., 134 F.Supp.2d at 1131.
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In the order issued on July 11, 2012, the Court addressed the time frame within which
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Plaintiff could have filed documents, Plaintiff’s inaccurate assertion that he had filed at least four
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motions seeking relief from the discovery deadline, and Plaintiff’s contentions relating to housing
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conditions and medical issues. (Doc. 68, 3:3-25 & 4:1-2.) In as much as Plaintiff requests that those
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arguments be considered with respect to reconsideration of the order denying his request to extend
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the amended pleadings deadlines, the Court reiterates that none of those arguments compels a
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different finding as to entitlement to reconsideration related to the amended pleadings deadline, and
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in particular, it bears repeating that Plaintiff’s transfer from one prison to another on March 8, 2012,
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was neither sudden nor unforeseen. (Id., 3:6-8.)
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Accordingly, Plaintiff’s motion for reconsideration of the order denying his motion to modify
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the scheduling order to extend the amended pleadings deadline is denied, with prejudice.
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IV.
Order
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For the reasons set forth above, it is HEREBY ORDERED that:
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Plaintiff’s motion for reconsideration of the order denying his motion to modify the
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scheduling order to extend the discovery deadline, filed on July 23, 2012, is
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DENIED, with prejudice; and
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2.
Plaintiff’s motion for reconsideration of the order denying his motion to modify the
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scheduling order to extend the amended pleadings deadline, filed on May 24, 2012,
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is DENIED, with prejudice.
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IT IS SO ORDERED.
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Dated:
ie14hj
October 10, 2012
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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