Hefner v. Chao, et al

Filing 14

ORDER Denying 13 Plaintiff's Motion for Reconsideration and Granting Extension of Time: Plaintiffs motion for reconsideration is DENIED; however, plaintiff may file with the Clerk of the Court and serve on opposing counsel his response in oppo sition to defendants motion to dismiss along with a certificate of service no later than April 22, 2009. NO FURTHER EXTENSIONS OF TIME WILL BE GRANTED. Defendants shall file a reply memorandum not later than April 29, 2009. The matter will be deemed submitted without oral argument on April 30, 2009. Signed by Judge M. James Lorenz on 4/14/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 RICHARD RANDALL HEFNER, 12 13 v. 14 ELAINE CHAO, Secretary of Labor, et al., 15 Defendants. 16 17 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1586 L (BLM) ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR RECONSIDERATION [doc. #9] and GRANTING EXTENSION OF TIME UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff seeks reconsideration of the Court Discrepancy Order filed March 4, 2009 [doc.

18 #11] that rejected plaintiff opposition to defendants' motion to dismiss as being untimely. 19 As set forth in the Court's Order of February 18, 2009 [doc. #10], defendants filed a

20 motion to dismiss the first amended complaint on December 15, 2009. Under the Civil Local 21 Rules, plaintiff's response was due on February 17, 2009 but on the due date, plaintiff filed an ex 22 parte motion for an extension of time in which to file his response in opposition to defendants' 23 motion to dismiss. In his ex parte motion, plaintiff stated that family medical issues necessitated 24 his request for an extension of time to file his response in opposition. As the Court noted in its 25 February 18, 2009 Order, "Plaintiff neither requests an extension for a specific number of days 26 nor provides information concerning whether the family medical issues he cites have been 27 resolved or whether an additional extension of time may be needed in order to file his 28 opposition." (Order at 1.) Noting plaintiff's pro se status, the Court granted plaintiff's request
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1 for an extension of time: "Plaintiff's response in opposition to defendants' motion to dismiss 2 shall be filed on or before March 2, 2009." Id. at 2. 3 Plaintiff's current request for reconsideration is based on his alleged lack of receipt of the

4 Courts' February 18, 2009 Order and his misunderstanding of when his response was due. 5 Civil Local Rule 7.1(i) allows parties to file motions for reconsideration. Under that local

6 rule, a party may apply for reconsideration "[w]henever any motion or any application or 7 petition for any order or other relief has been made to any judge and has been refused in whole 8 or in part. . . ." Civ. L. R. 7.1(i)(1). A party must show "what new or different facts and 9 circumstances are claimed to exist which did not exist, or were not shown, upon such prior 10 application." Id. A timely-filed motion for reconsideration under a local rule is considered a 11 motion under Federal Rule of Civil Procedure 59(e). Schroeder v. McDonald, 55 F.3d 454, 459 12 (9th Cir. 1995). 13 Reconsideration under Rule 59(e) is appropriate "if the district court (1) is presented with

14 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 15 unjust, or (3) if there is an intervening change in the controlling law." School Dist. No. 1J, 16 Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A Rule 59(e) 17 motion "should not be granted[] absent highly unusual circumstances." 389 Orange St. Partners 18 v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 19 Plaintiff first contends that he was "told that the `normal' extension of time is 14 days" by

20 court staff. (Reconsideration Mtn at 2.) Court staff is keenly aware that legal advice may not be 21 given to litigants and plaintiff's suggestion that he received such information is highly suspect. 22 Additionally, there is no and has never been a "normal" length of time connected with requests 23 for extensions of time. Plaintiff's suggestion otherwise is wholly without merit. 24 As noted above, plaintiff did not request an extension for a set number of days. (Order

25 filed February 18, 2009 at 1. [doc. #10]) As a result of the lack of specificity concerning how 26 much time plaintiff would need to file a response to defendants' motion, the Court's Order 27 clearly provided that "Plaintiff's response in opposition to defendants' motion to dismiss shall be 28 filed on or before March 2, 2009." Id. at 2.
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But plaintiff argues that he never received a copy of the Court's February 18, 2009 Order.

2 (Mtn at 2-3.) The official Court docket reflects that "[a]ll non-registered users [were] served via 3 U.S. Mail Service" with the Court's Order. The Court may infer receipt in the ordinary course 4 from the fact of mailing if the mail is directed to the proper address. Nunley v. City of Los 5 Angeles, 52 F.3d 792, 796 (9th Cir. 1995). Plaintiff's address on record is P.O. Box 80173, San 6 Diego, CA 92138. Although contending that he did not receive the mailed Order, the official 7 court record does not reflect that the mail was returned to the Court as undeliverable. The Court 8 also applies the common law mailbox rule that the mailing of a document creates a rebuttable 9 presumption that the document was received by the addressee in the usual time. See Schikore v. 10 Bank of America Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001). Although this 11 presumption is weaker when delivery is made by regular mail as opposed to certified mail, a 12 sworn affidavit should ordinarily be presented to rebut the presumption of delivery. See Salta v. 13 I.N.S., 314 F.3d 1076, 1079 (9th Cir. 2002). Here, plaintiff does nothing more than state he did 14 not receive the mailing. Interestingly, plaintiff has not contended that he failed to receive any 15 other document filed in this action. The Court finds plaintiff's statement that he did not receive 16 the Court's Order that provided the date for filing his opposition to defendants' motion not 17 credible. 18 Finally, plaintiff states that he was not aware that he needed to file a proof of service on

19 defendants with any document filed in this case even though he had "previously filed a case with 20 the Federal Court." (Mtn at 5.) Federal Rule of Civil Procedure 5(d)(1) provides that "[a]ny 21 paper after the complaint that is required to be served ­ together with a certificate of service ­ 22 must be filed within a reasonable time after service." Even though plaintiff is proceeding 23 without counsel, he must comply with the Federal Rules of Civil Procedure and the Civil Local 24 Rules. Nevertheless, the lack of certificate of service was only one of the problems with 25 plaintiff's response in opposition to defendants' motion to dismiss. Missing the Court imposed 26 deadline resulted in the document being rejected. 27 It is clear that plaintiff's response in opposition to defendants' motion was untimely albeit

28 by one day only. Plaintiff's arguments in support of his motion for reconsideration lack
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1 credibility for the reasons discussed above. His motion for reconsideration fails to meet the 2 standard under Rule 59(e) in that plaintiff has not presented newly discovered evidence, or 3 demonstrated that the Court committed clear error or the initial decision was manifestly unjust, 4 or asserted that there has been an intervening change in the controlling law. Nevertheless, the 5 Court will allow plaintiff to file his response in opposition to defendants' motion to dismiss in 6 the interest of justice, i.e., the Court prefers that decisions should be made after full briefing by 7 the parties and plaintiff is proceeding without counsel. 8 9 Based on the foregoing, IT IS ORDERED: 1. Plaintiff's motion for reconsideration is DENIED; however, plaintiff may file with

10 the Clerk of the Court and serve on opposing counsel his response in opposition to defendants' 11 motion to dismiss along with a certificate of service no later than April 22, 2009. NO 12 FURTHER EXTENSIONS OF TIME WILL BE GRANTED. 13 2. Defendants shall file a reply memorandum not later than April 29, 2009. The

14 matter will be deemed submitted without oral argument on April 30, 2009. 15 IT IS SO ORDERED.

16 DATED: April 14, 2009 17 18 19 COPY TO: 20 HON. BARBARA L MAJOR UNITED STATES MAGISTRATE JUDGE 21 22 ALL PARTIES/COUNSEL 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge