Himmelberger v. Lamarque et al

Filing 40

ORDER by Judge Ronald M. Whyte Denying 37 Motion to Reconsider. (jg, COURT STAFF) (Filed on 4/15/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. ANTHONY A. LAMARQUE, et. al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

*E-FILED - 4/15/09*

KRISTIN R. HIMMELBERGER, Plaintiff,

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No. C 03-3011 RMW (PR) ORDER DENYING MOTION TO RECONSIDER

(Docket No. 37)

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint alleging violations of his federal constitutional rights and state tort claims concerning the conditions of his confinement at Salinas Valley State Prison. On December 15, 2008, the court granted defendants' motion to dismiss, concluding that plaintiff's first amended complaint violated Federal Rules of Civil Procedure 8(a) and failed to state a cognizable claim for relief. The court also denied plaintiff's ex parte request to file a second amended complaint. On January 28, 2009, plaintiff filed a "memorandum of points and authorities in support of motion to vacate," which the court construes as a motion to reconsider its dismissal order. Federal Rules of Civil Procedure 60(b) lists six grounds for relief from a judgment: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the
Order Denying Motion to Reconsider P:\PRO-SE\SJ.Rmw\CR.03\Himmelberger011denrec.wpd1

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adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). "Rule 60(b) [] provides a mechanism for parties to seek relief from a judgment when "it is no longer equitable that the judgment should have prospective application," or when there is any other reason justifying relief from judgment. Jeff D. v. Kempthorne, 365 F.3d 844, 85354 (9th Cir. 2004) (quoting Fed. R. Civ. P. 60(b)). Plaintiff asserts he is entitled to reconsideration under Rule 60(b)(1). Specifically, he argues that his ex parte motion to amend the complaint should have been construed as a motion for leave to file an amended complaint because he misunderstood the procedure regarding the use of "ex parte" pleadings.1 Plaintiff further claims that after reading defendants' motion to dismiss, he agreed that his complaint lacked brevity and the claims needed to be more clear. Plaintiff also states that leave to amend should be freely given, and that the defendants would not be prejudiced by another amended complaint even though the case had been pending for more than five years. Under subparagraph (1), "the determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000). Here, the court already determined that allowing plaintiff to amend his complaint a second time would prejudice the defendants. Further, the court noted that the length of the delay was more than five years from the filing of the initial complaint. In addition, plaintiff proffered no good cause as to why he waited so long to seek a second leave to amend the complaint. In sum, the balance of the above factors weighs against granting reconsideration. To the extent plaintiff wishes to rely on Rule 60(b)(6), it is a "catchall provision" that applies only when the reason for granting relief is not covered by any of the other reasons set The court notes that although plaintiff makes reference to an attached declaration, no declaration has been filed or received.
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forth in Rule 60. Samish Indian Tribe v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005). "It has been used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Id. (internal quotations omitted). Thus, a party must establish "both injury and circumstances beyond his control that prevented him from proceeding in a proper fashion." Id. (internal quotations omitted). Mere dissatisfaction with the court's order or belief that the court is wrong in its decision are not adequate grounds for relief. Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Here, plaintiff concedes the court's reasons for dismissal, and challenges only the denial of his motion to amend his first amended complaint. However, as stated in its dismissal order, district courts have discretion to deny leave to amend particularly when, as here, the plaintiff has already filed an amended complaint, see Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003), and further, plaintiff is required to demonstrate good cause for requesting amendment after a scheduling order had already issued, see Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994), and here, plaintiff has not done so. Accordingly, the court concludes that plaintiff failed to show that the dismissal order was erroneous or that he is entitled to a reconsideration of such dismissal. Plaintiff's motion to reconsider is DENIED. IT IS SO ORDERED.

4/14/09 DATED: ________________

RONALD M. WHYTE United States District Judge

Order Denying Motion to Reconsider P:\PRO-SE\SJ.Rmw\CR.03\Himmelberger011denrec.wpd3