Brothers, II v. Buenafe et al
Filing
89
ORDER DENYING Petitioner's 88 Motion for Reconsideration signed by Magistrate Judge Helena M. Barch-Kuchta on 5/10/2021. (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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AUBREY LEE BROTHERS, II,
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Plaintiff,
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Case No. 1:17-cv-00607-NONE-HBK
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION
v.
(Doc. No. 88)
CHITA BUENAFE, N. RAMIREZ,
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Defendant.
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Pending review before the court is plaintiff’s motion titled “Objections to Magistrate
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Judge’s Findings and Recommendations regarding plaintiff sur-reply” construed as a motion for
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reconsideration under Federal Rule of Civil Procedure 60(b). (Doc. No. 88).
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I.
BACKGROUND
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Plaintiff Aubrey Lee Brothers, II, a state prisoner, initiated this action on May 1, 2017 by
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filing a pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Defendants moved for
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summary judgment. (Doc. Nos. 63). Plaintiff filed an opposition (Doc. No. 76) and defendants
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filed a reply. (Doc. No. 78). The motion for summary judgment remains pending before this court.
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On April 5, 2021, plaintiff filed an unauthorized surreply (Doc. No. 80) and defendants moved to
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strike the surreply from the record. (Doc. No. 81). On April 14, 2021, the court granted defendant’s
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motion to strike the surreply. (Doc. No. 83). On April 20, 2021, plaintiff filed a “Reply to
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Defendant’s Response to Plaintiff’s Improper Sur Reply.” (Doc. No. 84). This reply (Doc. No.
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84) was stricken as an unauthorized pleading. (Doc. No. 86). Plaintiff now seeks the court to
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reconsider the order granting defendant’s motion to strike the surreply. (Doc. No. 83).
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II.
APPLICABLE LAW AND ANALYSIS
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The court construes petitioner’s motion as a motion for reconsideration brought under
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Federal Rule of Civil Procedure 60(b). (Doc. Nos. 17, 18). Motions to reconsider are committed
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to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir.
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1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a party must set
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forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.
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See United States v. Westland Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001).
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Rule 60(b) provides relief from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
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(3) fraud (whether previously called intrinsic or extrinsic)
misrepresentation, or misconduct by an opposing party;
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(4) the judgment is void;
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(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
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(6) any other reason that justifies relief.
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Fed. R. Civ. P. 60(b). Under Local Rule, the moving party seeking reconsideration of an
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order must submit an “affidavit . . . setting forth the material facts” that show the “new or different
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facts or circumstances 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.” Local Rule 230(j).
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Here, petitioner has not stated any reasons under Rule 60(b)(1)-(5) for this court to
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reconsider its order striking petitioner’s unauthorized pleading, such as the discovery of new
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evidence, fraud, or mistake. Rather, petitioner states that he believed that he was permitted to file
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a surreply to defendant’s reply to plaintiff’s opposition to defendant’s motion for summary
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judgment. (Doc. No. 78). Plaintiff is mistaken. As stated in this court’s April 14, 2021 order,
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neither the Federal Rules of Civil Procedure, nor the Local Rules for the Eastern District of
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California permit the filing of a surreply as a matter of right. See Garcia v. Biter, 195 F.Supp.3d
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at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not have a right to file a surreply under
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the local rules or under the Federal Rules of Civil Procedure). However, district courts have
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discretion to permit, or preclude, a surreply. Id. at 1133 (other citations omitted). While courts are
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required to provide pro se litigants leniency, the court generally views motions for leave to file a
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surreply with disfavor and will not consider granting a motion seeking leave to file a surreply absent
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good cause shown. Id.; (Doc. No. 83). This court found that plaintiff did not demonstrate good
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cause to file a surreply. (Doc. No. 83 at 2). Plaintiff has not presented any arguments that
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demonstrate he is entitled to relief under Rule 60(b).
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Therefore, petitioner’s motion for
reconsideration is denied.
Accordingly, it is ORDERED plaintiff’s motion for reconsideration (Doc. No. 88) is
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DENIED.
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IT IS SO ORDERED.
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Dated:
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May 10, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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