Rupert v. Bond et al

Filing 188

Order by Hon. Beth Labson Freeman denying 174 Motion to Alter Judgment. The May 7, 2015 hearing presently scheduled for the motion is hereby VACATED. (blflc3S, COURT STAFF) (Filed on 3/27/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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WILLIAM RUPERT,

Case No. 12-cv-05292-BLF

Plaintiff,
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v.
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SUSAN BOND, et al.,
Defendants.

ORDER DENYING PLAINTIFF'S
SECOND MOTION TO ALTER OR
AMEND JUDGMENT
[Re: ECF 174]

United States District Court
Northern District of California

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On September 22, 2014, the Court granted, with prejudice, Defendants’ motions to dismiss

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in the above-captioned action. ECF 160. Thereafter, on October 20, 2014, Plaintiff filed a motion

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with the Court, pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend the Court’s

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judgment. ECF 161. Though the Court had not yet issued final judgment in the action, the Court

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adjudicated Plaintiff’s motion under Rule 59(e) as requested, stating:

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The Court had not yet entered judgment in this action when Plaintiff
filed this motion. Civil Local Rule 7-9(a) requires a party to seek
leave of court before filing a motion for reconsideration if judgment
has not been entered. See, e.g., Samet v. Procter & Gamble, 2014
WL 1782821, at *2 (N.D. Cal. May 5, 2014). However, Plaintiff,
who is pro se, filed his motion within 28 days of the Court granting
the dismissal with prejudice. It is reasonable to believe that Plaintiff
felt it necessary to file this motion within 28 days of that dismissal
order so that he could seek reconsideration of the Court’s ruling.
The Court thus adjudicates the motion as filed and briefed.
ECF 172 at 1 n.1.

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The Court denied Plaintiff’s motion on January 6, 2015, and issued judgment that same

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day. See ECF 172, 173. Plaintiff has now filed a second motion to alter or amend the judgment,
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seeking relief pursuant to Federal Rules of Civil Procedure 59(e) and 60(b). See ECF 174. This
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motion mainly reasserts the arguments Plaintiff previously made in his first motion to alter or
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amend the judgment. Plaintiff’s motion is essentially a motion for reconsideration of his prior

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motion for reconsideration – something that is not contemplated in the rules of civil procedure or

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this district’s local rules. He provides the Court no case citation for the appropriateness of this

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request. In his motion, Plaintiff concedes that the Court has adjudicated his request to reconsider

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the dismissal orders. See Mot. at 3 (“Plaintiff’s motion for reconsideration . . . was denied.”).

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Plaintiff does not get to twice seek reconsideration of the Court’s dismissal orders merely

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because the Court adjudicated his improperly filed Rule 59(e) motion and then issued separate

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judgment thereafter. Nor does he get to seek reconsideration of the Court’s order on his motion for

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reconsideration. Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of
finality and conservation of judicial resources.” Kona Enterps., Inc. v. Estate of Bishop, 229 F.3d

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United States District Court
Northern District of California

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877, 890 (9th Cir. 2000). Neither of those interests is furthered by permitting a plaintiff to bring a

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second motion under Rule 59(e). Nor can Plaintiff attempt to garner relief through a repackaging

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of his motion to alter or amend judgment as one brought under Rule 60(b), because “[t]he denial

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of a motion for reconsideration under Rule 59(e) is construed as a denial of relief under Rule

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60(b).” McDowell v. Calderon, 197 F.3d 1253, 1255 n.3 (9th Cir. 1999) (citing Pasatiempo by

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Pasatiempo v. Aizawa, 103 F.3d 796, 801 (9th Cir. 1996)); Barber v. Hawai’i, 42 F.3d 1185, 1198

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(9th Cir. 1994) (“In addition, a denial of a motion for reconsideration under Federal Rule of Civil

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Procedure 59(e) is construed as one denying relief under Rule 60(b).”).

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Plaintiff also contends that this second motion seeks to assert several new arguments not

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raised in his prior motion. See, e.g., Reply to Zusman Opp., ECF 181 at 8-11. But it is precisely a

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desire to prevent multiple motions for reconsideration from being filed that gives rise to this

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Circuit’s rule that the denial of a motion for reconsideration under Rule 59(e) also serves to deny

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relief under Rule 60(b). See, e.g., McDowell at 1255. As such, the Court DENIES Plaintiff’s

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motion. Plaintiff may not seek further reconsideration.

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IT IS SO ORDERED.
Dated: March 27, 2015
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BETH LABSON FREEMAN
United States District Judge
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