Jones v. Arnette, et al.

Filing 80

ORDER DENYING 78 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 4/22/2021. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMY JONES,

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Plaintiff,

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vs.

1:16-cv-01212-DAD-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(ECF No. 78.)

ARNETTE, et al.,

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Defendants.

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I.

BACKGROUND

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Jeremy Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act

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(ADA), 42 U.S.C. § 12132.

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On November 6, 2020, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties including a discovery deadline of April 6, 2021, and a dispositive

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motions deadline of June 6, 2021. (ECF No. 59.) On April 1, 2021, defendants Arnett, Flores,

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Gonzales, and Keener (“Defendants”) filed a motion to modify the Scheduling Order. (ECF No.

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74.)

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On April 9, 2021, the court issued an order granting Defendants’ motion to modify the

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Scheduling Order, extending the deadlines for discovery and for the filing of dispositive motions

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for all parties. (ECF No. 77.) On April 19, 2021, Plaintiff filed an opposition to the modification

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of the discovery deadline, which the court construes as a motion for reconsideration of the April

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9, 2021 order. (ECF No. 78.)
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II.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable

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diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3)

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fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

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opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R.

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Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The

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

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(internal quotation marks and citation omitted). In seeking reconsideration of an order, Local

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Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed

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to exist which did not exist or were not shown upon such prior motion, or what other grounds

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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 marks

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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 F.Supp.2d

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

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

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

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

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Here, Plaintiff objects to the extension of the discovery deadline to depose Plaintiff,

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because of Defendants’ misconduct. First, Plaintiff claims that Defendants failed to comply with

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deadlines in the court’s Discovery Order which require that all discovery requests be served at
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least 60 calendar days before the discovery deadline, and that notice of a deposition be served at

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least 15 calendar days before such deposition. Plaintiff asserts that Defendants waited until

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March 22, 2021 to serve notice of Plaintiff’s deposition and by the time Plaintiff received the

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notice, only 10 days were left until the scheduled deposition date. Second, Plaintiff argues that

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Defendants were not held to the same standard for complying with deadlines as Plaintiff was in

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a previous case when he was excluded from discovery for missing the “45-day rule.” (ECF No.

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78 at 2:3-7.) Plaintiff contends that Defendants should be held accountable for waiting until the

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last minute and scheduling his deposition for the very last day of discovery.

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III.

DISCUSSION

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Plaintiff has not set forth facts or law of a strongly convincing nature in his motion for

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reconsideration to induce the court to reverse its prior decision. Plaintiff claims that Defendants

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have not complied with deadlines, but he cites no examples of any deadlines that Defendants

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failed to meet. Modification of a scheduling order requires a showing of good cause, which

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requires a showing of due diligence by the party seeking modification. In its order of April 9,

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2021, the court found that Defendants showed that even with the exercise of due diligence they

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could not meet the requirements of the prior scheduling order. Plaintiff has not presented the

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court with newly discovered evidence, shown that the court committed clear error, or claimed

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there was an intervening change in the controlling law.

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reconsideration shall be denied.

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IV.

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Therefore, Plaintiff’s motion for

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

reconsideration, filed on April 19, 2021, is DENIED.

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IT IS SO ORDERED.
Dated:

April 22, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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