Levy v. Apple, Inc.

Filing 14

ORDER CONSTRUING PLAINTIFF'S NOTICE OF APPEAL 9 AS A MOTION FOR RECONSIDERATION; DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION. . Signed by Magistrate Judge Donna M. Ryu on 08/14/13. (dmrlc2, COURT STAFF) (Filed on 8/14/2013)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

11
For the Northern District of California

United States District Court

10
AMANDA U LEVY,

12
13

Plaintiff(s),
v.

14

APPLE INC,

15

No. C-13-02075 DMR
ORDER TREATING PLAINTIFF’S
NOTICE OF APPEAL [DOCKET NO. 9]
AS A MOTION FOR
RECONSIDERATION; DENYING
PLAINTIFF’S MOTION FOR
RECONSIDERATION

Defendant(s).
___________________________________/

16
17

On June 24, 2013, this court issued an order granting Plaintiff’s motion for leave to proceed

18

in forma pauperis and dismissing her complaint for failure to state a claim on which relief may be

19

granted pursuant to 28 U.S.C. § 1915(e). [Docket No. 6.] The court gave Plaintiff until July 8, 2013

20

to file an amended complaint. Plaintiff did not do so. On July 10, 2013, the court dismissed the case

21

for failure to prosecute. [Docket No. 7.] On July 25, 2013, Plaintiff filed a notice of appeal to the

22

Ninth Circuit. [Docket No. 9.] However, it appears that Plaintiff intended to file a motion for

23

reconsideration of the July 8, 2013 deadline for filing an amended complaint with this court, rather

24

than an appeal to the Ninth Circuit. See Docket No. 9 (“Your Honor, I would like to thank you for

25

granting me leave to amend my complaint for the above-captioned cases [C-13-2075 and C-13-

26

2076]. Unfortunately, I did not receive your letter. Hence, I would like to appeal the Order of

27

Dismissal for failure to Prosecute . . . I pray you would allow me to proceed with [the amended

28

1

pleadings] in your courtroom.”). Accordingly, this court will construe Plaintiff’s notice of appeal as

2

a motion for reconsideration of the July 8, 2013 deadline for filing an amended complaint.

3

Absent “highly unusual circumstances,” reconsideration is appropriate only where (1) the

decision was manifestly unjust, (3) there is an intervening change in controlling law. School Dist.

6

No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). A motion for

7

reconsideration cannot be based on evidence that could reasonably have been discovered prior to the

8

court’s ruling on the original motion. See Hopkins v. Andaya, 958 F.2d 881, 887 n. 5 (9th Cir.1992),

9

abrogated on other grounds by Saucier v. Katz, 533 U.S. 194, 201 (2001) and Scott v. Henrich, 39

10

F.3d 912, 915 (9th Cir.1994). Whether to grant or deny a motion for reconsideration is in the sound

11
For the Northern District of California

court is presented with newly-discovered evidence, (2) the court committed clear error or the initial

5

United States District Court

4

discretion of the district courts. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir.2003).

12

None of the circumstances under which a court ordinarily reconsiders its prior decisions are

13

present here; instead, Plaintiff’s only basis for seeking reconsideration is that she did not receive the

14

court’s order granting her leave to file an amended complaint. That order was duly served on

15

Plaintiff at the address she provided in her complaint. See Docket Nos. 1 and 6-1 (Proof of Service).

16

Under these circumstances, the court declines to reconsider its prior orders.1 Plaintiff’s motion to

17

receive court documents via email [Docket No. 13] is denied.

18
19

IT IS SO ORDERED.

20
21

Dated: August 14, 2013

22
DONNA M. RYU
United States Magistrate Judge

23
24
25
26
27
28

1

In any event, the court notes that Plaintiff’s proposed amended complaint fails to correct the
deficiencies noted in the court’s June 24, 2013 order dismissing the case, and still does not state a claim
on which relief can be granted. See Docket No. 10.

2