Pavey et al v. Recontrust Company N.A.

Filing 37

ORDER signed by Judge Garland E. Burrell, Jr. on 8/6/2012 ORDERING that Plaintiff's 36 Motion for Reconsideration is DENIED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRIAN M. PAVEY, JANELLE R.
PAVEY,

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Plaintiffs,

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v.

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RECONTRUST COMPANY, N.A.; and
Does 1-10,

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Defendants.
________________________________

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2:11-cv-01477-GEB-DAD
ORDER DENYING PLAINTIFFS’
MOTION FOR RECONSIDERATION*

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An Order was filed on March 5, 2012 (“Dismissal Order”), which

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adopted

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Recommendations

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Reporting Act claim with prejudice and dismissed Plaintiffs’ state

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claims without prejudice under 28 U.S.C. § 1367(c)(3). (ECF No. 28.)

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Judgement was entered accordingly on the same day. (ECF No. 29.)

Magistrate
in

part

Plaintiffs,

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the

Judge’s
and

February

dismissed

appearing

pro

13,

2012

Plaintiffs’

se,

filed

Findings
Federal

a

and

Credit

Motion

for

Reconsideration on May 19, 2012, in which they seek “an order rescinding

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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it [sic] dismissal of Plaintiff[s’] action with prejudice.” (Pls.’ Mot.

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for Reconsideration

11:4, ECF No. 36.)

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Since Plaintiffs’ motion was filed more than twenty-eight days

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after entry of judgment, “it is treated as a motion for relief from

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judgment or order[,]” under Federal Rule of Civil Procedure 60(b). Am.

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Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99

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(9th Cir. 2001)(applying Rule 59(e)’s ten day deadline before its 2009

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amendment to twenty-eight days)(citation omitted).

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The moving party under Rule 60(b) is entitled
to relief from judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the
judgment
has
been
satisfied,
released,
or
discharged; or (6) any other reason justifying
relief from the operation of the judgment.

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Id. at 899 (citing Fed. R. Civ. Proc. 60(b)).

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“Given the lack of any specific citation by plaintiff[s], the

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Court

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60(b)(6).” Williams v. Horel, No. C 09-5314 MMC (PR), 2012 WL 1965748,

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at *1 (N.D. Cal. May 31, 2012); accord In re Lebbos, No. CIV. S-09-1252

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LKK, 2010 WL 5060646, at *1 (E.D. Cal. Dec. 3, 2010).

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[is]

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injustice.

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circumstances[.]” United States v. Alpine Land & Reservoir Co., 984 F.2d

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1047, 1049(9th Cir. 1993). “A party seeking reconsideration must show

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more than a disagreement with the Court’s decision[.]” Smith v. Bd. of

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Prison Term Personnel, No. 1:06-cv-01434-LJO-NEW (DLB) PC, 2007 WL

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2753078, at *1 (E.D. Cal. Sept. 21, 2007).

assumes

used

plaintiff[s]

sparingly
The

rule

as
is

an
to

[are]

basing

equitable
be

remedy

utilized

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[their]

only

to

motion

Rule

“Rule 60(b)(6)

prevent

[under]

on

manifest

extraordinary

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Plaintiffs

“ha[ve]

not

demonstrated

any

extraordinary

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circumstances such as would warrant reconsideration of this court’s

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[Dismissal Order].” In re Lebbos, 2010 WL 5060646, at * 1. Therefore,

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Plaintiffs’ reconsideration motion is denied.

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Dated:

August 6, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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