Cobb v. Consunji et al

Filing 59

Order by Magistrate Judge Donna M. Ryu DENYING 53 Plaintiff's Request for Reconsideration. (dmrlc1, COURT STAFF) (Filed on 1/23/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JASON E COBB,

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Plaintiff,

No. C-11-02496 DMR
ORDER DENYING PLAINTIFF’S
REQUEST FOR RECONSIDERATION

v.

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CRISTINA CONSUNJI, et al.,

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Defendants.
___________________________________/

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On December 28, 2011, the court issued an Order dismissing Plaintiff Jason Cobb’s lawsuit.

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[Docket No. 52.] Plaintiff subsequently requested leave to file a motion for reconsideration with

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respect to the court’s Order.1 [Docket No. 53.] In his motion, Plaintiff sought permission to file his

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“Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge” pursuant

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to Federal Rule of Civil Procedure 72(b), 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72-3(a).

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However, the rules identified by Plaintiff address referrals to magistrate judges from district court

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judges. Here, the matter was originally assigned to this court. Defendants filed their consent to the

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jurisdiction of a magistrate judge on July 18, 2011 [Docket No. 6], and Plaintiff filed his consent on

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July 21, 2011 [Docket No. 12]. Accordingly, the rules cited by Plaintiff are inapplicable as the

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On January 23, 2012, Plaintiff filed a “Notice of Appeal Pursuant to FRAP 3(A) and
4(A),” in which he appears to withdraw his request for leave to file a motion for reconsideration.
[Docket No. 57.]

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undersigned is the presiding judge pursuant to the consent of all parties pursuant to 28 U.S.C. §

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636(c), and no matter has been referred from a district court judge.

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Civil Local Rule 7-9 governs motions for reconsideration “[b]efore the entry of a judgment

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adjudicating all of the claims and the rights and liabilities of all the parties in a case.” Once

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judgment has been entered, as in the present case [Docket No. 58], reconsideration may be sought by

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filing a motion under Federal Rule of Civil Procedure 60(b) (motion for relief from judgment). See

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Hinton v. Pacific Enter., 5 F.3d 391, 395 (9th Cir. 1993). Accordingly, the court shall construe

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Plaintiff’s motion as a Rule 60(b) motion for relief from judgment.

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reasons:

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For the Northern District of California

United States District Court

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Under Rule 60(b), the court may relieve a party from a final judgment for the following

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or misconduct
by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied,
released or discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or (6) any other reason
that justifies relief.

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Fed. R. Civ. P. 60(b).
The court finds that Plaintiff’s motion must be denied because Plaintiff has failed to satisfy

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any of the Rule 60(b) factors. He has not established that relief is warranted because of mistake,

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inadvertence, surprise, or excusable neglect. He does not show any fraud or misrepresentation by

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Defendants; does not assert that the judgment is void; does not argue that the judgment should have

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no prospective application; and does not raise any other reason justifying relief from the operation of

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the judgment.

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Plaintiff’s primary argument in support of his motion appears to be his belief that the court’s

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December 28, 2011 Order is not “authentic,” as it is “contrary to the tone, reasoning, cited case law,

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writing style and overall spirit” of the court’s September 27, 2011 Order [Docket No. 32] in which

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the court granted in part and denied in part Defendants’ motion to dismiss Plaintiff’s complaint and

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granted Plaintiff leave to amend. (Pl.’s Mot. 1.) Plaintiff suggests that the court “may not have

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actually been extended the opportunity to review Plaintiff’s response” to Defendants’ motion to

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dismiss Plaintiff’s first amended complaint. (Pl.’s Mot. 2.)

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The court notes that it carefully reviewed and considered all motion papers and supporting

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documents filed in this case. Further, Plaintiff’s argument that the December 28, 2011 Order is

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contrary to the reasoning of the September 27, 2011 Order, in which the court granted Plaintiff leave

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to amend, is without merit. While, as noted in the September 27, 2011 Order, “[d]ismissal of a pro

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se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of

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the complaint could not be cured by amendment,” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th

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Cir. 2007) (citation omitted), valid reasons for denying leave to amend include undue delay, bad

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faith, prejudice, and futility. Foman v. Davis, 371 U.S. 178, 182 (1962). The court may also

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consider whether pleadings have previously been amended. Bonin v. Calderon, 59 F.3d 815, 845

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(9th Cir. 1995).
Here, Plaintiff has already been given two opportunities to amend his complaint. First, in

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ruling on Defendants’ first motion to dismiss, the court granted Plaintiff leave to amend his

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complaint. Plaintiff filed his amended complaint on October 18, 2011, and an errata thereto on

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October 25, 2011. [Docket Nos. 39, 40.] In connection with his opposition to Defendants’ motion

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to dismiss his first amended complaint, Plaintiff submitted a proposed second amended complaint,

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which purportedly cured the deficiencies in the first amended complaint. [Docket No. 47.] Upon

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reviewing the proposed second amended complaint, the court concluded that further leave to amend

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would be futile, and accordingly dismissed the first amended complaint without leave to amend.

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Plaintiff’s remaining arguments in support of his motion for relief from judgment are more

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properly raised in an appeal of the court’s order and judgment. Therefore, Plaintiff’s motion is

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DENIED.

Dated: January 23, 2012

u

a M. Ry

NO

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Judge D

DONNA M. RYU
United States Magistrate Judge

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ERED

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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