Myers v. Smalls et al

Filing 23

ORDER Denying Plaintiff's Motion For Reconsideration (Re Doc. 22 ). Signed by Judge John A. Houston on 1/26/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM THOMAS MYERS,
v.

Plaintiff,

LARRY SMALLS, et. al.,
Defendants.

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Civil No. 08cv1810 JAH (WMc)
ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION
[Doc. No. 22]

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On January 20, 2012, Plaintiff filed a motion for reconsideration asking this Court

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to reconsider the denial of Plaintiff’s motion for sanctions and seeking additional sanctions

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against the United States Marshals Service. A party may seek relief from a judgment or

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order pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b) permits relief from

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a judgment or order for: (1) mistake, inadvertence, surprise, or excusable neglect ; (2)

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newly discovered evidence which by due diligence could not have been discovered in time

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to move for a new trial, (3) fraud, misrepresentation, or other misconduct by an adverse

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party; (4) a void judgment; (5) satisfaction, release, or discharge of the judgment; or (6)

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“any other reason justifying relief from the operation of the judgment.” FED.R.CIV.P.

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60(b). Rule 60(b)(6) “has been used sparingly as an equitable remedy to prevent injustice.

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The rule is to be utilized only where extraordinary circumstances prevented a party from

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taking timely action to prevent or correct an erroneous judgment.” United States v. Alpine

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Land Reservior, Co., 984 F.2d 1047, 1049 (9th Cir. 1993), cert. denied, 114 S.Ct. 60

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(1993). The Ninth Circuit has instructed that “[i]n determining whether Rule 60(b)

08cv1810

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applies, courts should be mindful that the rules are to be construed to achieve the just

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determination of every action.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983).

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This Court finds there are no grounds upon which to grant the motion for

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reconsideration. A motion for reconsideration “should not be granted, absent highly

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unusual circumstances, unless the district court is presented with newly discovered

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evidence, committed clear error, or if there is an intervening change in controlling law.”

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Kona Enters v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations omitted).

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Plaintiff’s exhibits, which include copies of the legal mail log from Calipatria State Prison,

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copies of orders directing the United States Marshal to serve the complaint, a copy of

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Plaintiff’s rejected motion for default judgment, a form from the Marshals Service

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notifying Plaintiff his documents are being returned because he failed to submit a certified

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copy of the order authorizing service, and Plaintiff’s proofs of service, are not newly

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discovered evidence to support reconsideration.

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discovered, the documents do not demonstrate the United States Marshal Service refused

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or neglected to diligently execute process to support an issuance of sanctions. See

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42 U.S.C. § 1990. Plaintiff fails to demonstrate reconsideration is warranted.

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Even if the evidence was newly

Accordingly, IT IS HEREBY ORDERED Plaintiff’s motion for reconsideration is

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DENIED.

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DATED: January 26, 2012

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JOHN A. HOUSTON
United States District Judge

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08cv1810