Willis v. Lappin et al

Filing 85

ORDER denying 84 Motion for reconsideration and striking Motion for sanctions signed by Magistrate Judge Gary S. Austin on 3/27/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES R. WILLIS,

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Plaintiff,

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vs.
DEVERE,

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Defendant.

1:09-cv-01703-AWI-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
ORDER STRIKING PLAINTIFF’S
MOTION FOR SANCTIONS AS AN
IMPERMISSIBLE SURREPLY
(Doc. 84.)

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I.

BACKGROUND

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James R. Willis (APlaintiff@) is a federal prisoner proceeding pro se in this civil rights

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action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed this

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case on September 28, 2009. (Doc. 1.) This case proceeded on Plaintiff’s Third Amended

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Complaint, filed on July 8, 2011, against defendant Devere (“Defendant”) for failure to protect

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Plaintiff in violation of the Eighth Amendment.1 (Doc. 24.) On May 20, 2013, the court

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dismissed this action with prejudice, pursuant to the parties’ Stipulation for Dismissal and Rule

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41(a) of the Federal Rules of Civil Procedure. (Doc. 64.)

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On March 19, 2013, the court granted Defendants’ motion to dismiss, dismissing all other claims and
defendants from this action. (Doc. 60.)

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On July 22, 2013, Plaintiff filed an Expedited Motion to Enforce Settlement. (Doc. 66.)

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On August 6, 2013, Defendant filed an opposition to the motion. (Doc. 68.) On August 26,

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2013, Plaintiff filed a reply to the opposition. (Doc. 71.) On January 15, 2014, the court

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entered findings and recommendations, recommending that Plaintiff’s motion be denied. (Doc.

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78.) On February 6, 2014, Plaintiff filed objections to the findings and recommendations.

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(Doc. 79.) On February 13, 2014, Defendant filed a reply to Plaintiff’s objections. (Doc. 80.)

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The findings and recommendations have been submitted to the District Judge.

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On March 24, 2014, Plaintiff filed a motion for the imposition of sanctions upon

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counsel for Defendants. (Doc. 84.) In the motion, Plaintiff raises objections to the court’s

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order of March 7, 2014.

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reconsideration.

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II.

The court construes Plaintiff’s objections as a motion for

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

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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

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

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an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion.”

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“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,” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Plaintiff objects to the court’s order of March 7, 2014, striking Plaintiff’s prior motion

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for sanctions, filed on March 3, 2014, as an impermissible filing and surreply. Plaintiff argues

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that “he previously raised the request for sanctions in his Expedited Motion to Enforce

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Settlement . . . [h]owever a motion requesting sanctions must be filed as a separate motion.”

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(Motion, Doc. 84 at 2-3 ¶II.)

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Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. Therefore, the motion for reconsideration shall be denied.

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III.

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SURREPLY
A surreply, or sur-reply, is an additional reply to a motion filed after the motion has

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already been fully briefed.

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visited December 31, 2013). The Local Rules provide for a motion, an opposition, and a reply.

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Neither the Local Rules nor the Federal Rules provide the right to file a surreply. A district

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court may allow a surreply to be filed, but only “where a valid reason for such additional

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briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v.

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England, 2005 WL 3031136, *1 (E.D.Cal. Nov. 8, 2005).

USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last

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Plaintiff’s motion for sanctions, which raises a new argument in support of his

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Expedited Motion to Enforce Settlement,2 is a surreply, because the Expedited Motion to

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Enforce Settlement was fully briefed and submitted on the record under Local Rule 230(l) on

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August 26, 2013, when Plaintiff filed his reply to Defendant’s opposition. (Doc. 68.) Plaintiff

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now seeks to bring a new argument because “[h]e has now become aware that the Counsel for

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the Defendant has violated Local Rule 131(f) by signing the Plaintiff’s name on [the parties’

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In the Expedited Motion to Enforce Settlement, Plaintiff requested either (1) enforcement of the parties’
settlement agreement, (2) allowing a stipulated amendment to the settlement agreement, or (3) voiding the
agreement. (Doc. 66 at 4.)

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stipulation to dismiss this case] electronically without first obtaining a signed original

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document from Plaintiff.” (Motion, Doc. 84 at 3.)

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The Court neither requested a surreply nor granted a request by Plaintiff to file one.

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Moreover, it appears that Plaintiff’s motion for sanctions is without merit, because the court

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record shows Plaintiff’s non-electronic signature on the parties’ stipulation to dismiss this case,

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filed on May 17, 2013. (Doc. 63 at 1.) Thus, the court finds no valid reason to allow Plaintiff

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to file his motion for sanctions, or surreply, at this juncture. Therefore, Plaintiff’s motion for

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sanctions shall be stricken from the record as an impermissible surreply.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff=s motion for reconsideration of the court’s order of March 7, 2014, is
DENIED; and

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Plaintiff’s motion for sanctions, filed on March 24, 2014, is STRICKEN from
the record as an impermissible surreply.

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IT IS SO ORDERED.
Dated:

March 27, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE