Phanvongkham et al v. Moultrie

Filing 22

ORDER CONSTRUING Plaintiff's 14 Notice as a Motion for Reconsideration; ORDER DENYING Reconsideration signed by Chief Judge Lawrence J. O'Neill on 3/8/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SISOMPHONE PHANVONGKHAM and
FELICIA NAVARRO,
Plaintiffs,

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v.

ORDER CONSTRUING PLAINTIFFS’ NOTICE
AS A MOTION FOR RECONSIDERATION
ORDER DENYING RECONSIDERATION
PURSUANT TO Fed R. Civ. P. 59(e) and 60(b).

MELISSA MOULTRIE,
(ECF No. 14).
Defendant.

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Case No. 1:16-cv-01032-LJO-BAM

This action, now closed, was filed by pro se Plaintiffs’ Sisomphone Phanvongkham and

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Felicia Navarro. On April 12, 2017, the Magistrate Judge issued Findings and Recommendations
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recommending that Plaintiffs’ First Amended Complaint be dismissed for lack of subject matter

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jurisdiction.
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(ECF No. 10).

Plaintiffs’ filed untimely objections to the Findings and

Recommendations on May 2, 2017.

(ECF No. 11). Following consideration of Plaintiffs’

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objections, the undersigned adopted the Findings and Recommendations. (ECF No. 12). On June
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9, 2017, judgment was entered and this action was closed. (ECF No. 13).
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Plaintiffs’ “Pro Se Notice of Motion Other Paper Drawing Into Question IOF [sic] A State
& Federal Statute” is now pending before the Court. (ECF No. 14). Although somewhat unclear,
Plaintiffs’ Motion appears to request review of the Court’s order dismissing this case. As the

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Findings and Recommendations have been adopted and final judgment entered, the Court will
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construe Plaintiffs’ filing as a motion for reconsideration.

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The Court may grant reconsideration of a final judgment under Federal Rules of Civil
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Procedure 59(e) and 60(b). Generally, a motion for reconsideration of a final judgment is
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appropriately brought under Federal Rule of Civil Procedure 59(e). See Am. Ironworks &
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Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (discussing
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reconsideration of summary judgment). The motion must be filed no later than twenty-eight days

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after entry of the judgment. See Fed. R. Civ. P. 59(e). Under Rule 59(e), three grounds may

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justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new

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evidence; or (3) the need to correct clear error or prevent manifest injustice. See Allstate Ins. Co.

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v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011).

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Under Rule 60(b), the court may grant reconsideration of a final judgment and any order

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based on, among other things: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence which, with reasonable diligence, could not have been discovered within

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twenty-eight days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an

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opposing party. A motion for reconsideration on any of these grounds must be brought within a

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reasonable time and no later than one year of entry of judgment or the order being challenged. See

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Fed.R.Civ.P. 60(c)(1).

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Plaintiffs’ motion for reconsideration is untimely. Plaintiffs filed their request for

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reconsideration beyond the 28 day time period allowed by Rule 59(e). Judgment was entered on

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June 9, 2017. Plaintiffs’ Motion was not signed nor received by the Court until July 10, 2017.

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(ECF No. 14). However, if the Court were to consider the merits of Plaintiffs’ Motion, Plaintiffs

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have not provided the Court with any intervening change in controlling law, new evidence, or

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clear error. Nor have Plaintiffs set forth any argument which would allow the Court to reconsider

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the entry of final judgment based on a mistake, inadvertence, surprise, or excusable neglect.

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Instead, Plaintiffs’ Motion advances frivolous and nonsensical arguments, none of which

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demonstrate that Plaintiffs are entitled to relief from judgment.

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Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ motion for reconsideration (ECF
No. 14) is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 8, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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