Reynolds v. Gerstel et al

Filing 123

ORDER Denying Motion for Judicial Notice 115 and Denying Motion for Reconsideration 116 ; ORDER Denying Motions for Default Judgment Against Defendant 118 120 121 , signed by District Judge Anthony W. Ishii on 4/23/13. Defendant's Motion for an Extension of Time to Meet and Confer with Plaintiff is GRANTED 119 . 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FERDINAND REYNOLDS,

1:09-cv-00680-AWI-SAB (PC)

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Plaintiff,
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ORDER DENYING MOTION FOR JUDICIAL
NOTICE AND DENYING MOTION FOR
RECONSIDERATION

v.
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K. GERSTEL,
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ORDER DENYING MOTIONS FOR
DEFAULT JUDGMENT AGAINST
DEFENDANT

Defendant.
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/
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(ECF Nos. 115, 116, 118, 120, & 121)

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Plaintiff Ferdinand Reynolds (“Plaintiff”) is appearing pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. Following resolution of the parties cross16
motions for summary judgment, this action is proceeding on Plaintiff’s claim that Defendant
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Gerstel was deliberately indifferent to Plaintiff’s dental needs in violation of the Eighth
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Amendment in extracting a tooth on August 18, 2008. (ECF No. 67.)
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1.

Judicial Notice and Reconsideration

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On July 25, 2012, Plaintiff filed a motion for a hearing due to willful and intentional
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destruction of his evidence. (ECF No. 103.) On July 30, 2012, a telephonic hearing was
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conducted by the district court judge; and this action was referred to the Magistrate Judge for
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determination if any action needed to be taken due to Plaintiff’s allegations regarding his missing
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property and evidence. (ECF No. 104.)
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Defendant filed an opposition to Plaintiff’s motion on August 22, 2012. (ECF No. 106.)
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Plaintiff filed a reply on September 12, 2012, and a supplement to his reply on September 24,
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2012. (ECF Nos. 107 & 108.) On December 17, 2012, Plaintiff filed a declaration. (ECF No.
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109.) On February 11, 2013, Plaintiff filed a second surreply labeled “Judicial Notice on

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Pending Fact Finding Hearing.” (ECF No. 113.) On February 12, 2013, the Magistrate Judge

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issued an order denying Plaintiff’s request. (ECF No. 112.) On February 21, 2013, Plaintiff filed

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a second request for “Judicial Notice on Pending Fact Finding Hearing. (ECF No. 115.) On

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February 28, 2013, Plaintiff filed an opposition to the Magistrates’s February 11, 2013 order

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denying Plaintiff’s request for a hearing.1 (ECF No. 116.)

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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

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the 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 second request for judicial notice and his opposition to the Magistrate’s

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ruling, he simply restates his prior arguments and does not present newly discovered evidence,

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clear error, or an intervening change in the law. Thus, the Court denies Plaintiff’s motion for

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Judicial notice and his motion to reconsider the Magistrate’s order denying the motion for an

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evidentiary hearing.

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In Plaintiff’s February 28, 2013 motion he also offered to settle the case. (ECF No. 116.) The Court
recognizes Plaintiff’s request, but will only schedule a settlement hearing upon indication that both parties wish to
settle. Defendants stated in their March 26, 2012 pretrial statement that they do not believe a settlement conference
would be helpful. (ECF No. 81.)

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2.

Default Judgement
On March 28, 2013, April 4, 2013, and April 8, 2013, Plaintiff filed motions for entry of

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default judgment against Defendant for failure to obey a court order. (ECF Nos. 118, 120, &

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121.) On March 29, 2013, Defendant filed an opposition to Plaintiff’s motion for default

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judgment. (ECF No. 119.) On April 17, 2013, Plaintiff filed a response. (ECF No. 122.) The

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Court’s February 12, 2013 order directed both parties to file a notice regarding the stipulated

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description of the [filling] within thirty days. Additionally, Defendant’s opposition states that

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Defendant made a clerical error in addressing correspondence to Plaintiff and that Defendant

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corrected the error immediately upon its discovery. Local Rule 110 provides that the failure to

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comply with any order of the Court may be grounds for sanctions, but does not require sanctions.

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Due to the fact that neither party complied with the Court’s order, default judgment against the

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Defendant is not an appropriate sanction.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

No. 115);

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2.

3.

Plaintiff’s motions for entry of default judgment filed on March 28, 2013, April 4,
2013, and April 8, 2013, are DENIED (ECF Nos. 118, 120, 121);

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Plaintiff’s motion for reconsideration filed on February 28, 2013 is DENIED
(ECF No. 116);

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Plaintiff’s request for judicial notice filed on February 21, 2013 is DENIED (ECF

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Defendant’s motion for an extension of time to meet and confer with Plaintiff is

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GRANTED. (ECF No. 119.) The parties shall have thirty (30) days from the

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date of this order to notify the Court whether they are able to stipulate to a

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description of the filling; and

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same as set forth in the Court’s February 12, 2013 order.

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If the parties are unable to reach a stipulation, the instruction shall remain the

IT IS SO ORDERED.
Dated:
0m8i78

April 23, 2013
SENIOR DISTRICT JUDGE