Rodriguez v. Morrison et al

Filing 20

ORDER signed by Judge Garland E. Burrell, Jr on 7/14/11 DENYING 19 Motion to Reopen Case. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE ANTONIO RODRIGUEZ,

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Plaintiff,

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vs.

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No. 2:10-cv-1361 GEB JFM (PC)

T. MORRISON,

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Defendant.

ORDER
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This matter was closed on December 13, 2010 after the undersigned adopted

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Magistrate Judge John F. Moulds’s October 18, 2010 findings and recommendations

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recommending that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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On May 18, 2011, plaintiff filed a motion to reopen this case. The court construes plaintiff’s

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motion as a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b).

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Under this rule, a party may obtain relief from judgment or an order due to clerical

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mistakes or because of mistake, inadvertence, excusable neglect, fraud or newly discovered

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evidence. Motions to reconsider are generally left to the discretion of the trial court. See Combs

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v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to

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reconsider, 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 Kern–Tulare Water Dist. v. City of Bakersfield, 634 F. Supp.
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656, 665 (E.D. Cal .1986), aff'd in part and rev'd in part on other grounds 828 F.2d 514 (9th Cir.

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1987).

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Plaintiff avers that he was unable to prosecute this action because he was

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attending to child custody matters in Los Angeles, CA in August 2010.1 The court does not find

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this explanation sufficient to warrant reopening this case. On August 10, 2010, Judge Moulds

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found that plaintiff stated a claim against defendant T. Morrison and directed plaintiff to file

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certain documents within thirty days of the date of that order. Plaintiff did not submit any

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documents and did not respond in any way to the order. Thereafter, on October 18, 2010, Judge

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Moulds issued findings and recommendations recommending that the matter be dismissed.

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Plaintiff failed to file objections to the recommendation. On December 13, 2010, the

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undersigned adopted the findings and recommendations and this case was closed. Upon

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consideration of this procedural history and assuming that plaintiff was indeed unavailable

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during the entire month of August 2010, plaintiff does not explain why he was unable to

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prosecute this matter in September, October or November 2010.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s May 18, 2011 motion to
reopen is denied.
Dated: July 14, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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Also in his motion, plaintiff discusses at length circumstances concerning his parole
status and a restraining order that he contends has been vacated. The court is unable to discern
the nature and relevance of these allegations.
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