Rosenbalm v. Foulk

Filing 45

ORDER DENYING MOTION FOR REHEARING. Signed by Judge Richard Seeborg on 12/7/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/7/2011)

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1 2 *E-Filed 12/7/11* 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 10 11 14 15 ORDER DENYING MOTION FOR REHEARING Plaintiff, 12 13 No. C 10-0071 RS (PR) VINCENT LEE ROSENBALM, v. EDWARD FOULK, Defendant. / 16 17 This closed federal civil rights action was filed pursuant to 42 U.S.C. § 1983 by a pro 18 se state prisoner. Plaintiff’s motion for a rehearing, which the Court construes as a motion 19 for reconsideration, (Docket No. 44), is DENIED. Where, as here, the Court’s ruling has 20 resulted in a final judgment or order, a motion for reconsideration may be based either on 21 Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. 22 “Under Rule 59(e), it is appropriate to alter or amend a judgment if ‘(1) the district 23 court is presented with newly discovered evidence, (2) the district court committed clear 24 error or made an initial decision that was manifestly unjust, or (3) there is an intervening 25 change in controlling law.’” United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 26 779 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 27 2001)). Here, plaintiff has made no showing that there is newly-discovered evidence, the 28 No. C 10-0071 RS (PR) ORDER DENYING MOTION FOR REHEARING 1 Court committed clear error or made an initial decision that was manifestly unjust, or that 2 there was an intervening change in controlling law. 3 Rule 60(b) provides for reconsideration where one or more of the following is shown: 4 (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that 5 by due diligence could not have been discovered before the court’s decision; (3) fraud by the 6 adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other 7 reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 8 1255, 1263 (9th Cir. 1993). Although couched in broad terms, subparagraph (6) requires a 9 showing that the grounds justifying relief are extraordinary. See Twentieth Century-Fox United States District Court For the Northern District of California 10 Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Here, plaintiff has made no 11 showing that there is newly-discovered evidence, nor has he shown that there was any 12 mistake, inadvertence, surprise, excusable neglect, fraud by the adverse party, or voiding of 13 the judgment; plaintiff offers no other reason justifying relief. The Clerk shall terminate 14 Docket No. 44. 15 16 IT IS SO ORDERED. DATED: December 7, 2011 RICHARD SEEBORG United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 2 No. C 10-0071 RS (PR) ORDER DENYING MOTION FOR REHEARING

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