Medhealth Nursing et al v. California Department of Public Health et al

Filing 82

Order by Judge Claudia Wilken denying 75 Motion for Leave to File a Motion for Reconsideration. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 3/6/2018)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

DANILO MALLARI,

5
6
7

Case No. 13-cv-04038-CW

Plaintiff,
v.
TRACY VESSIGAULT, et al.,

8

Defendants.

United States District Court
Northern District of California

9

ORDER ON PLAINTIFF'S MOTION
FOR LEAVE TO FILE A MOTION
FOR RECONSIDERATION TO REJOIN
MEDHEALTH NURSING AS PARTY
PLAINTIFF
(Dkt. No. 75)

10
11

Plaintiff Danilo Mallari moves for leave to file a motion

12

for reconsideration of the Court’s January 3, 2018 order denying

13

Mallari’s motion to amend the scheduling order and rejoin

14

Medhealth Nursing.

15

papers and the record, the Court hereby DENIES Mallari’s motion.

16

See Docket No. 74.

Having considered the

Civil Local Rule 7-9 governs motions for leave to file a

17

motion for reconsideration.

18

must specifically show reasonable diligence in bringing the

19

motion,” as well as one of the following:

20

(1)

21
22
23
24
25
26
27
28

(2)
(3)

It provides that the “moving party

That at the time of the motion for leave, a
material difference in fact or law exists from
that which was presented to the Court before entry
of the interlocutory order for which
reconsideration is sought. The party also must
show that in the exercise of reasonable diligence
the party applying for reconsideration did not
know such fact or law at the time of the
interlocutory order; or
The emergence of new material facts or a change of
law occurring after the time of such order; or
A manifest failure by the Court to consider
material facts or dispositive legal arguments
which were presented to the Court before such
interlocutory order.

1

Mallari asserts that he did not hear the deadline for adding
additional parties or claims at the case management conference

3

because he was sitting in the gallery and that counsel did not

4

provide him with a copy of the minute order and case management

5

order.

6

scheduling deadlines in August 2017 when he consulted with the

7

Legal Help Center and obtained a copy of the minute order and

8

case management order, and that he moved shortly thereafter to

9
United States District Court
Northern District of California

2

rejoin Medhealth as a party plaintiff.

He further asserts that he only became aware of the

Mallari also alleges that

10

“facts emerged that he has been misrepresented by counsel that

11

caused the dismissal of other meritorious issues of the case as

12

noted [in the Court’s January 3, 2018 order].”

13

With the exception of Mallari’s last argument, all of his

14

arguments are not new and have already been addressed by the

15

January 3, 2018 order.

16

discovered that he was misrepresented by counsel, is construed as

17

an argument that new material facts have emerged since the

18

issuance of the January 3, 2018 order that require

19

reconsideration.

20

explain, however, the nature of counsel’s alleged

21

misrepresentation, when he found out about the alleged

22

misrepresentation, and why the alleged misrepresentation is

23

material to the January 3, 2018 order.

24

indicates that he still has not retained a lawyer to represent

25

Medhealth.

26

order, Medhealth cannot be a party to this case without a lawyer.

27

Docket No. 28 at 3-4, 8.

28

represent Medhealth since he moved to rejoin Medhealth in

Mallari’s last argument, that he recently

See Civil Local Rule 7-9(2).

Mallari does not

Moreover, Mallari

As the Court advised him in its February 26, 2014

Mallari’s failure to retain a lawyer to

2

1

September 2017 demonstrates a lack of reasonable diligence.

2

Accordingly, Mallari has not met his burden of showing that

3

reconsideration of the January 3, 2018 order is warranted and his

4

motion must be denied.

5

IT IS SO ORDERED.

6
7

Dated: March 6, 2018
CLAUDIA WILKEN
United States District Judge

8
United States District Court
Northern District of California

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3