Brinskele v. The United States

Filing 48

ORDER REGARDING REPORT AND RECOMMENDATIONS AND MOTION TO DISMISS. Signed by Judge JEFFREY S. WHITE on 9/29/14. (jjoS, COURT STAFF) (Filed on 9/29/2014)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

EDWARD BRINSKELE,

11
For the Northern District of California

United States District Court

10

12
13

Plaintiff,

No. 13-MISC-80094 JSW

v.

ORDER REGARDING REPORT
AND RECOMMENDATIONS AND
MOTION TO DISMISS

UNITED STATES OF AMERICA,
Defendant.
/

14
15

On April 15, 2014, Magistrate Judge Donna M. Ryu issued Report and

16

Recommendations, in which she recommended that the United States’ motion for a money

17

judgment and for an order compelling an answer to the writ of garnishment be granted. On May

18

22, 2014, Magistrate Judge Ryu issued another Report and Recommendation in which she

19

recommended that the United States be awarded $4,340 in attorney’s fees against Vir2us. No

20

objections have been filed. The Court has reviewed Magistrate Judge Rue’s Reports and finds

21

them to be well-reasoned and thorough, and adopts the Reports in almost every respect. The

22

Court GRANTS the motion for a money judgment and will enter partial judgment in favor of

23

the United States and against Vir2us in the amount of $103,812. The Court FURTHER

24

ORDERS that Vir2us be compelled to file and serve a full and complete answer to the writ of

25

garnishment by no later than October 6, 2014. The adopts the Report issued on May 22, 2014

26

in full and thus HEREBY AWARDS the United States $4,340 in attorney’s fees against Vir2us.

27

The Court has also reviewed the motion to dismiss for lack of subject matter jurisdiction

28

filed by plaintiff Edward Brinskele (“Plaintiff”). In this motion, Plaintiff repeats the same

1

arguments that the Court already considered and rejected in the motion to stay and the motion to

2

vacate. In order to bring this motion, Plaintiff was required, but failed, to move for leave to file

3

a motion for reconsideration. On this basis alone, the Court denies the improper motion to

4

dismiss.

5

Even if Plaintiff had followed the proper procedures, and first filed a motion for leave to

warranted. Under Northern District Local Civil Rule 7-9, a motion for reconsideration may be

8

made on one of three grounds: (1) a material difference in fact or law exists from that which

9

was presented to the Court, which, in the exercise of reasonable diligence, the party applying

10

for reconsideration did not know at the time of the order; (2) the emergence of new material

11
For the Northern District of California

file a motion for reconsideration, he has not demonstrated that reconsideration would be

7

United States District Court

6

facts or a change of law; or (3) a manifest failure by the Court to consider material facts or

12

dispositive legal arguments presented before entry of judgment. N.D. Civ. L.R. 7-9(b)(1)-(3).

13

The moving party may not reargue any written or oral argument previously asserted to the

14

Court. Id., 7-9(c).

15

Accordingly, the Court DENIES Plaintiff’s motion to dismiss.

16

IT IS SO ORDERED.

17
18

Dated: September 29, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
2