Franklin v. United States

Filing 61

ORDER DENYING 60 Plaintiff's Request for Reconsideration signed by Magistrate Judge Michael J. Seng on 2/28/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EMERY I. FRANKLIN,

CASE No. 1:10-cv-00142-LJO-MJS (PC)

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Plaintiff,

ORDER DENYING PLAINTIFF’S REQUEST
FOR RECONSIDERATION

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v.

(ECF No. 60)

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UNITED STATES,

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Defendant..
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/
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On January 20, 2010, Plaintiff Emery I. Franklin, a federal prisoner proceeding

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pro se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims

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Act (“FTCA”). (ECF No. 1.) The action proceeds on Plaintiff’s Second Amended

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Complaint for negligence against the United States. (ECF No. 13.) Defendant filed its

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Answer on April 19, 2012. (ECF No. 22.)

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Plaintiff filed a Motion for Summary Judgment on January 30, 2013. (ECF No.

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53.) On February 5, 2013, Defendant filed an Ex Parte Request to Extend Time to

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Respond to the Motion. (ECF No. 56.) The Court on February 6, 2013 granted

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Defendant’s request and extended to March 11, 3013, Defendant’s deadline to

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respond to Plaintiff’s Motion. (ECF No. 57.)
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Pending before the Court is Plaintiff’s February 19, 2013 Response to

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Defendant’s Ex Parte Request. (ECF No. 60.) The Court construes this as a request for

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reconsideration of its February 6, 2013 Order.

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Rule 60(b)(6) allows the Court to relieve a party from an order and judgment for

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any reason that justifies relief. 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

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circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The

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moving party “must demonstrate both injury and circumstances beyond his control . . . .”

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Id. In seeking reconsideration of an order, Local Rule 230(j) requires a party to identify

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the motion or order in issue and when it was made, and show “what new or different

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

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such prior 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 . . . court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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

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and “[a] party seeking reconsideration must show more than a disagreement with the

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[c]ourt's decision, and recapitulation . . .” of that which was already considered by the

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court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,

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1131 (E.D. Cal. 2001).

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Plaintiff’s request for reconsideration shall be denied.

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Plaintiff argues Defendant has engaged in discovery and other delaying tactics.

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He has not identified any new facts, or legal or factual error, or any other reasonable

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grounds to justify reconsideration of the Court’s Order. Indeed, requests for extension

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of time made before the deadline has passed normally should be and usually are

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granted absent of bad faith or prejudice to the adverse party. Fed. R. Civ. P. 6(b)(1);

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Ahanchian v. Xenon Pictures, Inc. , 624 F.3d 1253, 1259 (9th Cir. 2010). The Court

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sees no evidence of bad faith or prejudice.
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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s Response to the

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Ex Parte Request for Extension of Time construed as a request for reconsideration of

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the Court’s February 6, 2013 Order (ECF No. 60) is DENIED.

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IT IS SO ORDERED.

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Dated:
12eob4

February 28, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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