Verble v Ninth U S District Court, et al

Filing 11

ORDER denying 9 Motion for Reconsideration: Signed by Judge M. James Lorenz on 5/4/2007. (mjj, )(mam).

Verble v Ninth U S District Court, et al

Doc. 11

Case 3:07-cv-00652-L-LSP

Document 11

Filed 05/04/2007

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 MICHAEL VERBLE, 12 13 v. 14 9TH U.S. DISTRICT COURT; JUDGE JUDY KEEP; AND ELECTRONIC 15 DOCKET RECORDS CLERK, 16 17 18 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No.07-CV-652-L(LSP) ORDER DENYING MOTION FOR RECONSIDERATION [doc. # 9] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On April 12, 2007, plaintiff, appearing pro se, filed a complaint, a motion for leave to

19 proceed in forma pauperis, and a motion for appointment of counsel. The Court granted 20 plaintiff in forma pauperis status, dismissed his action with prejudice and denied his motion for 21 appointment of counsel. [doc. #4]. Plaintiff now seeks reconsideration of the Court's Order of 22 dismissal. Having carefully reviewed the motion presented, the Court denies plaintiff's motion 23 for reconsideration. 24 25 Legal Standard Local Civil Rule 7.1(i) requires a party seeking reconsideration to show "what new or

26 different facts and circumstances are claimed to exist which did not exist, or were not shown, 27 upon such prior application." L. CIV. R. 7.1(i). Federal Rule of Civil Procedure 59(e) authorizes 28 a party to file a motion to alter or amend a judgment within 10 days after entry of the judgment.
07cv652

Dockets.Justia.com

Case 3:07-cv-00652-L-LSP

Document 11

Filed 05/04/2007

Page 2 of 4

1 "While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule 2 offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation 3 of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal 4 quotations omitted). The Ninth Circuit has admonished that absent highly unusual 5 circumstances, a district court should not grant a motion for reconsideration pursuant to Rule 6 59(e) unless: (1) the movant presents the court with newly-discovered evidence; (2) the court 7 committed clear error that was manifestly unjust, or (3) there is an intervening change in 8 controlling law. Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); 9 Navajo Nation v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 10 1046 (9th Cir. 2003); Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). 11 "Motions for reconsideration serve a limited function: to correct manifest errors of law or

12 fact or to present newly discovered evidence." Publisher's Resource, Inc. v. Walker Davis 13 Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985)(quoting Keene Corp. v. Int'l Fid. Ins. Co., 14 561 F. Supp. 656, 665-66 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984); see Novato Fire 15 Protection Dist. v. United States, 181 F.3d 1135, 1142, n. 6 (9th Cir. 1999), cert. denied, 529 16 U.S. 1129 (2000). Reconsideration should not be used to "argue new facts or issues that 17 inexcusably were not presented to the court in the matter previously decided." Brambles USA, 18 Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990); Kona , 229 F.3d at 890 ("A Rule 59(e) 19 motion may not be used to raise arguments or present evidence for the first time when they could 20 reasonably have been raised earlier in the litigation."). 21 Neither the Local Civil Rules nor the Federal Rule of Civil Procedure, which allow for a

22 motion for reconsideration, is intended to provide litigants with a second bite at the apple. 23 24 Discussion Plaintiff seeks reconsideration of the dismissal order filed April 18, 2007, contending that But in his Complaint, plaintiff

25 he did cite to a statute for relief, specifically 42 U.S.C. § 645. 26 27 28
2

07cv652

Case 3:07-cv-00652-L-LSP

Document 11

Filed 05/04/2007

Page 3 of 4

1 references 18 U.S.C. § 645, not 42 U.S.C. § 645.1 The Court notes that 42 U.S.C. § 645 has 2 been repealed.2 Plaintiff also list a series of statutes associated with the Equal Opportunity 3 Commission apparently believing that the statutes are applicable here. 4 As noted above, absent "highly unusual circumstances," reconsideration of a final

5 judgment or order is appropriate only where (1) the court is presented with newly-discovered 6 evidence, (2) the court committed "clear error or the initial decision was manifestly unjust," or 7 (3) there is an intervening change in the controlling law. Kona, 229 F.3d at 890. It appears 8 plaintiff's motion is premised on the second basis. It is difficult, however, to discern the basis 9 for plaintiff's motion because plaintiff's request is nearly unintelligible, offering little more than 10 a series of string citations to statutes concerning discrimination under Title VII, which concerns 11 discrimination in employment and is clearly inapplicable in this case. Plaintiff has not presented 12 any plausible basis for his motion. Plaintiff presents no change in the controlling law, no 13 newly-discovered evidence, and makes no showing that the Court committed clear error. 14 Further, even if the Court were to consider plaintiff's argument again, the Court would

15 reach the same conclusion it made in its April 18, 2007 Order. Plaintiff seeks money damages 16 under a criminal statute, 18 U.S.C. § 645. Plaintiff may not bring a criminal action against 17 another party. As discussed in the Court's April 18, 2007 Order: 18 19 20 21 22 23 24 25 26 27 28 42 U.S.C. § 645 was repealed under Public Law 100-485, Title II, §202(a), October 13, 1988, 102 Stat. 2377.
3
07cv652
2 1

It appears that plaintiff seeks to hold defendants criminally liable for acts taken with respect to his 2004 district court case. But a private citizen has no right to The Complaint, in its entirety states:

KEEPER OF ELECTRONIC RECORDS ­ JUDGE JUDY KEEP, CLERK OF 9TH U.S. DISTRICT COURT DID COMMIT FRAUD OF DOCKET 04-CV537K(JFS) BY CHANGING CASE NUMBER TO 04-CV537LAB(JFS) AFTER FORFIT AT PRELIMINARY TRIAL IN APRIL 2004. JUDGE KEEP REFUSED TO FILE COURT STAMPED VIA CLERKS OFFICE COMPLAINT OF JUNE RIGHT BEFORE TRIAL STATING RELIEF REQUESTED ILLEGALLY ASSIGNED CASE TO ANOTHER JUDGE AFTER FORGIT OF PRELIMINARY JUDGE. MAKING DATES OF TRIAL SAME AS PRIOR CASE NUMBER. PAPERWORK IN QUESTION FILED TO UNHCR HONG KONG, 1816-2006 DOCKETED. TITLE 18 USC SECTION(S) 642, 641, 645, 665! RELIEF OF $110,000,000.00 AS PER LAW, TWICE X TORT CASE

Case 3:07-cv-00652-L-LSP

Document 11

Filed 05/04/2007

Page 4 of 4

1 2 3 4 5

institute criminal prosecution against other parties. See Diamond v. Charles, 476 U.S. 54, 64-65, 106 S. Ct. 1697 (1986); In re Kaminski, 960 F.2d 1062, 1064 (D.C. Cir. 1992) (private party lacks judicially cognizable interest in prosecution of another person); Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir.1990); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989); Linda R.S. v. Richard D., 93 S. Ct. 1146, 1149 (1973)("in American jurisprudence, at least, a private citizen lacks a judicially cognizable interest in the prosecution . . . of another"). The Court found that plaintiff had asserted claims that clearly do not exist and declared

6 plaintiff's Complaint as legally frivolous. That finding remains. 7 8 CONCLUSION Based on the foregoing, IT IS ORDERED denying plaintiff's request for

9 reconsideration. [doc. #9]. 10 IT IS SO ORDERED.

11 DATED: May 4, 2007 12 13 14 COPY TO: 15 HON. LEO S. PAPAS UNITED STATES MAGISTRATE JUDGE 16 17 ALL PARTIES/COUNSEL 18 19 20 21 22 23 24 25 26 27 28
4
07cv652

M. James Lorenz United States District Court Judge