Williford v. Scrivner

Filing 39

ORDER DENYING 35 Plaintiff's Motion for Reconsideration and Clarification, signed by Magistrate Judge Jennifer L. Thurston on 8/14/2015. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD WILLIFORD,
Plaintiff,

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v.
ZACH SCRIVNER,
Defendant.

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Case No.: 1:15-cv-00653 - KJM - JLT
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION AND CLARIFICATION
(Doc. 35)

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Plaintiff seeks reconsideration and clarification of the Court’s order dated August 6, 2015.

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(Doc. 35) Plaintiff maintains that the defendant did not serve him with the motion to dismiss, and

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again seeks to have it stricken. (Id.)

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Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality

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and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A

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reconsideration motion “should not be granted absent highly unusual circumstances.” McDowell v.

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Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999), cert. denied, 490 U.S. 1059 (1989). A reconsideration

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motion “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a

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rehearing on the merits, or otherwise taking a ‘second bite at the apple.’” See Sequa Corp. v. GBJ

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Corp., 156 F.3d 136, 144 (2d Cir. 1998). “A party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation of the cases and arguments considered by

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the court before rendering its original decision fails to carry the moving party’s burden.” United
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States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal citations

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omitted). “To succeed, a party must set forth facts or law of a strongly convincing nature to induce the

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court to reverse its prior decision.” Id.

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Reconsideration is appropriate if the court: (1) is presented with newly discovered evidence; (2)

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has committed clear error or the initial decision was manifestly unjust; or (3) is presented with an

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intervening change in controlling law. School District 1J, Multnomah County v. AC and S, Inc., 5 F.3d

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1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). In addition, there may be other highly

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unusual circumstances warranting reconsideration. Id. Under this Court’s Local Rule 230(j), a party

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seeking reconsideration must demonstrate “what new or different facts or circumstances are claimed to

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exist 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.”

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Here, Plaintiff does not present any new facts or legal theories. Although he previously

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asserted that he did not receive a copy of the motion to dismiss from the defendant, the Court noted the

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“Defendant filed a proof of service indicating the motion to dismiss was served on Plaintiff by mail on

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July 23, 2015.” (Doc. 31 at 1, citing Doc. 27-1 at 1) While Plaintiff asserts he did not receive it, this

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error may lie with the United States Post Office. Moreover, Plaintiff must have received notice of the

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motion because he filed a timely opposition to it. (See Doc. 29)

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Because Plaintiff has not demonstrated the Court committed a clear error or that its ruling on

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the motion the motion to strike was manifestly unjust, Plaintiff fails to show reconsideration is

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appropriate. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration

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(Doc. 35) is DENIED.

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IT IS SO ORDERED.
Dated:

August 14, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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