Newton v. Curzen et al

Filing 5

ORDER GRANTING LEAVE TO FILE A MOTION FOR RECONSIDERATION. Signed by Judge Richard Seeborg on 8/23/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 8/24/2010)

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Newton v. Curzen et al Doc. 5 1 2 3 4 5 6 7 8 9 10 *E-Filed 8/24/10* IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) OFFICER CURZEN, and SAN ) QUENTIN STATE PRISON, ) ) Defendants. ) ______________________________ ) CARDELL NEWTON, No. C 10-1490 RS (PR) ORDER GRANTING LEAVE TO FILE A MOTION FOR RECONSIDERATION United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's complaint was dismissed for plaintiff's failure to (1) pay the filing fee of $350.00, or (2) file a complete application to proceed in forma pauperis, by the appropriate date. Judgment was entered in favor of defendants. Plaintiff has filed a letter in which he contends that the Court's ruling was in error. The Court will construe this letter as a motion for leave to file a motion for reconsideration. So construed, the motion is GRANTED. Where, as here, the Court's ruling has resulted in a final judgment or order, a motion for reconsideration may be based either on Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. "Under Rule 59(e), it is appropriate to alter or amend a judgment if `(1) the district court is presented with newly discovered evidence, (2) the district court committed clear No. C 10-1490 RS (PR) ORDER 1 2 3 4 5 6 7 8 9 10 error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law.'" United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 779 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)). Plaintiff may not bring a motion under Rule 59(e) because such a motion must be brought no later than 28 days after the entry of judgment. Judgment was entered well over 28 days ago. Plaintiff may, however, bring a motion for reconsideration under Rule 60(b). Rule 60(b) provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a showing that the grounds justifying relief are extraordinary. See Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Plaintiff must file a motion for reconsideration within 30 days from the date of this order. No extensions of time will be granted. IT IS SO ORDERED. DATED: August 24, 2010 _________________________ RICHARD SEEBORG United States District Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 No. C 10-1490 RS (PR) ORDER

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