Dillingham v. Emerson

Filing 79

ORDER DENYING 73 Plaintiff's Motion for Reconsideration of the Court's April 2, 2020 Order signed by District Judge Anthony W. Ishii on 8/10/2020. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DILLINGHAM,
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Plaintiff,
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v.

Case No. 1:18-cv-00507-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION OF THE
COURT’S APRIL 2, 2020 ORDER

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N. EMERSON, et al.,

[ECF No. 73]

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Defendants.
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Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for reconsideration, filed on May 4, 2020.

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Plaintiff seeks reconsideration under Federal Rule of Civil Procedure 59(e) of the Court’s April 2,

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2020 order denying his request for entry of default.

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The Court may grant reconsideration under Rule 59(e) or 60. See Schroeder v.

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McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A motion to alter or amend a judgment under

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Rule 59(e) must be filed no later than 28 days after the entry of judgment. Fed. R. Civ. P. 59(e).

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Therefore, a “motion for reconsideration” is treated as a motion to alter or amend judgment under

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Rule 59(e) if it is filed within 28 days of entry of judgment; otherwise, it is treated as a Rule 60(b)

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motion for relief from judgment or order. Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016);

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see also Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir.

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2001). Because judgment has not been entered in this case, the Court construes Plaintiff’s motion
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as brought under Rule 60.
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”

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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any

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event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id.

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Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to

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show the “new or different facts or circumstances claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.” Motions to

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reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825

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F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc).

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To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.

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Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514

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(9th Cir. 1987).

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Here, Plaintiff contends that under Federal Rule of Civil Procedure 12, Defendants had

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fourteen days to file an answer to the complaint after their motion to dismiss was denied on

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February 20, 2020. Fed. R. Civ. P. 12(a)(4)(A). Pursuant to Rule 12, unless otherwise ordered,

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“if the court denies the motion or postpones its disposition until trial, the responsive pleading

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must be served within 14 days after notice of the court's action.” Fed. R. Civ. P. 12(a)(4)(A).

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The Court finds that Plaintiff’s motion for reconsideration shall be denied. First, in

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denying Defendants’ motion to dismiss, the Court’s February 20, 2020 order referred the matter

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back to the magistrate judge for further proceedings. (ECF No. 66.) Thus, the order did not

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direct Defendants to file a response pursuant to Rule 12(a)(4)(A), and it appears reasonable for

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Defendants to have believed that the Court would issue a further order directing a response.

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Indeed, on March 10, 2020, the Court directed Defendants to file a response within fourteen days.
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(ECF No. 67.) Defendants filed their answer on March 24, 2020. (ECF No. 68.) Therefore,

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although Defendants did not file an answer to the complaint within fourteen days after notice of

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the order denying their motion to dismiss, Plaintiff fails to provide any evidence of prejudice or

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harm caused by Defendants’ untimely filing. Considering that “a case should, whenever possible,

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be decided on the merits,” the Court finds an insufficient basis to enter default, and Plaintiff’s

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motion for reconsideration shall be denied. U.S. v. Signed Personal Check No. 730 of Yubran S.

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Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). Accordingly, Plaintiff’s motion for reconsideration

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of the Court’s April 2, 2020 order is denied.

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IT IS SO ORDERED.
Dated: August 10, 2020
SENIOR DISTRICT JUDGE

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