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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSEPH ALEJANDRO ORTEGA, 8 Plaintiff, Case No.: C-10-3239-YGR ORDER DENYING MOTION TO VACATE 9 10 Northern District of California United States District Court 11 12 vs. KURT RODENSPIEL et al., Defendants. 13 14 Now before the Court is Plaintiff’s Motion to Vacate. (Dkt. No. 118.) That Motion asks the 15 Court to vacate its May 24, 2013 Order denying Plaintiff’s earlier motion to alter a judgment entered 16 against Plaintiff on March 7, 2013. (Dkt. Nos. 107 & 115 [“May 24 Order”].) Plaintiff appealed that 17 judgment to the Ninth Circuit on June 12, 2013. (Dkt. No. 124.) 18 On June 17, 2013, the Court held a conference call with counsel for both sides. On that call, 19 counsel agreed to provide the Court with a plan for orderly resolution of the pending Motion to 20 Vacate, given both the Ninth Circuit appeal and the pendency of a habeas petition before the San 21 Mateo County Superior Court. Plaintiff represents that the parties met and conferred pursuant to the 22 Court’s instructions but were unable to agree on a resolution. (Dkt. No. 127 [“Pl. Reply”] at 1 n.1.) 23 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds 24 that this motion is appropriate for decision without oral argument. Accordingly, the Court VACATES 25 the hearing set for July 16, 2013. 26 Having carefully considered the parties’ papers, the Court DENIES Plaintiff’s Motion to 27 Vacate. As this Court’s May 24 Order explained, unless and until the Superior Court grants his 28 habeas petition, his ground for altering the judgment is “speculative.” (May 24 Order at 3.) After this 1 Court issued the May 24 Order, the Superior Court ordered Defendants to show cause why Plaintiff’s 2 habeas petition should not be granted. (Dkt. No. 119, Ex. A.) As Plaintiff recognizes (see Pl. Reply 3 at 2-3), the order to show cause does not grant his habeas petition. Consequently, there still exists no 4 ground to alter the judgment. 5 This Order terminates Dkt. No. 118. 6 IT IS SO ORDERED. 7 8 Dated: July 12, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 9 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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