Ortega v. Rodenspiel et al

Filing 128

ORDER by Judge Yvonne Gonzalez Rogers denying 118 Motion to Vacate. The July 16, 2013 at 2:00pm hearing is VACATED. (fs, COURT STAFF) (Filed on 7/12/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH ALEJANDRO ORTEGA,

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Plaintiff,

Case No.: C-10-3239-YGR
ORDER DENYING MOTION TO VACATE

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Northern District of California

United States District Court

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vs.
KURT RODENSPIEL et al.,
Defendants.

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Now before the Court is Plaintiff’s Motion to Vacate. (Dkt. No. 118.) That Motion asks the

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Court to vacate its May 24, 2013 Order denying Plaintiff’s earlier motion to alter a judgment entered

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against Plaintiff on March 7, 2013. (Dkt. Nos. 107 & 115 [“May 24 Order”].) Plaintiff appealed that

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judgment to the Ninth Circuit on June 12, 2013. (Dkt. No. 124.)

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On June 17, 2013, the Court held a conference call with counsel for both sides. On that call,

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counsel agreed to provide the Court with a plan for orderly resolution of the pending Motion to

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Vacate, given both the Ninth Circuit appeal and the pendency of a habeas petition before the San

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Mateo County Superior Court. Plaintiff represents that the parties met and conferred pursuant to the

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Court’s instructions but were unable to agree on a resolution. (Dkt. No. 127 [“Pl. Reply”] at 1 n.1.)

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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds

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that this motion is appropriate for decision without oral argument. Accordingly, the Court VACATES

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the hearing set for July 16, 2013.

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Having carefully considered the parties’ papers, the Court DENIES Plaintiff’s Motion to

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Vacate. As this Court’s May 24 Order explained, unless and until the Superior Court grants his

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habeas petition, his ground for altering the judgment is “speculative.” (May 24 Order at 3.) After this

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Court issued the May 24 Order, the Superior Court ordered Defendants to show cause why Plaintiff’s

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habeas petition should not be granted. (Dkt. No. 119, Ex. A.) As Plaintiff recognizes (see Pl. Reply

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at 2-3), the order to show cause does not grant his habeas petition. Consequently, there still exists no

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ground to alter the judgment.

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This Order terminates Dkt. No. 118.

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IT IS SO ORDERED.

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Dated: July 12, 2013

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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Northern District of California

United States District Court

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