Zochlinski v. Regents of the University of California, et al

Filing 48

ORDER signed by Judge Kimberly J. Mueller on 12/9/11 ORDERING that Plaintiff's MOTION for a New Trial 47 is DENIED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALAN ZOCHLINSKI,
Plaintiff,

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No. CIV S-10-1824-KJM-JFM (PS)

vs.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA, et al.,

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Defendants.
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ORDER
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This case was closed and judgment entered on August 11, 2011 following

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adoption by the undersigned of the magistrate judge’s February 10, 2011 findings and

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recommendations, recommending that defendants’ motion to dismiss be granted and the action

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be dismissed. On September 6, 2011, plaintiff filed a motion for new trial based on Federal Rule

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of Civil Procedure 59(a) or, in the alternative, to alter/amend judgment based on Federal Rule of

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Civil Procedure 59(e). Plaintiff moves for an order vacating judgment on the grounds that the

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decision to grant defendants’ motion to dismiss was against the weight of the evidence, the

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magistrate judge was biased, and there exists a manifest error in fact.

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As an initial matter, Rule 59(a) is inapplicable because judgment in this case was

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entered in response to a motion to dismiss, not following trial. The language of Rule 59(a)

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expressly limits its application to tried cases and is not applicable to matters resolved via motion
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to dismiss. See Fed. R. Civ. P. 59(a); Merrill v. County of Madera, 389 Fed. Appx. 613, 615

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(9th Cir. 2010) (“a Rule 59(a) motion for a new trial is not available on claims or causes of

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action for which Plaintiffs never received a trial”).

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Under Rule 59(e), a party may move to “alter or amend a judgment” within

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twenty-eight days of the entry of the judgment. Although the Rule does not list specific grounds

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for such a motion, the Ninth Circuit has said that a Rule 59(e) motion may be granted if “(1) the

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district court is presented with newly discovered evidence, (2) the district court committed clear

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error or made an initial decision that was manifestly unjust, or (3) there is an intervening change

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in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). This

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court has “wide discretion” when considering such a motion. League to Save Lake Tahoe v.

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Tahoe Regional Planning Agency, 739 F.Supp.2d 1260, 1294 (E.D. Cal. 2010). That said,

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plaintiff bears the burden of persuasion on reconsideration. Kittner v. Gates, 783 F.Supp.2d 170,

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172 (D.D.C. 2011). Moreover, the rule provides “an ‘extraordinary remedy, to be used sparingly

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in the interests of finality and conservation of judicial resources.’” Kona Enterprises, Inc. v.

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Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting James Wm. Moore et al., Moore's

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Federal Practice § 59.30[4] (3d ed. 2000)).

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Plaintiff has not met his burden to prevail on reconsideration. Rather, plaintiff

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provides the court with the same arguments and legal authority contained in his opposition to the

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motion to dismiss and his opposition to the magistrate judge’s findings and recommendations.

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“Reconsideration is not an avenue to re-litigate the same issues and arguments upon which the

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court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev.

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2005).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for new trial is

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denied.

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DATED: December 9, 2011.
UNITED STATES DISTRICT JUDGE

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