Saunders v. Almager et al

Filing 32

ORDER Granting (Doc. 26 ) Motion For Reconsideration; Denying As Moot (Doc. 24 ) Request for Enlargement of Time to File Objections to the Report and Recommendation; and Referring Matter to the Magistrate Judge. Petitioner's motion for recons ideration is Granted. The magistrate judge shall prepare a Report taking into account the entire record in this case, including petitioner's traverse. Petitioner's request for an enlargement of time to file objections to the Report is Denied as Moot. Signed by Judge M. James Lorenz on 10/20/2010. (All non-registered users served via U.S. Mail Service) (srm)

Saunders v. Almager et al

Doc. 32

1 2 3 4 5 6 7 8 9 10 11 MARK McLEAN SAUNDERS, 12 13 v. 14 V.M. ALMAGER, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv708 L (WMc) ORDER GRANTING MOTION FOR RECONSIDERATION [doc. #26]; DENYING AS MOOT REQUEST FOR ENLARGEMENT OF TIME TO FILE OBJECTIONS TO THE REPORT [doc. #24]; and REFERRING MATTER TO THE MAGISTRATE JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On September 16, 2010, the magistrate judge filed a Report and Recommendation

18 ("Report") in this action which seeks a writ of habeas corpus. Petitioner moves for 19 reconsideration because of a factual discrepancy in the Report. Specifically, the Report twice 20 states that petitioner did not file a traverse to respondent's answer when in fact petitioner timely 21 filed his traverse on December 16, 2009. (See Report at 21 and 25; Traverse [doc. #21].) 22 Civil Local Rule 7.1(i) allows parties to file motions for reconsideration. Under that local

23 rule, a party may apply for reconsideration "[w]henever any motion or any application or 24 petition for any order or other relief has been made to any judge and has been refused in whole 25 or in part. . . ." Civ. L. R. 7.1(i)(1). A party must show "what new or different facts and 26 circumstances are claimed to exist which did not exist, or were not shown, upon such prior 27 application." Id. A timely-filed motion for reconsideration under a local rule is considered a 28 motion under Federal Rule of Civil Procedure 59(e). Schroeder v. McDonald, 55 F.3d 454, 459
09cv708

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1 (9th Cir. 1995). 2 Reconsideration under Rule 59(e) is appropriate "if the district court (1) is presented with

3 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 4 unjust, or (3) if there is an intervening change in the controlling law." School Dist. No. 1J, 5 Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A Rule 59(e) 6 motion "should not be granted[] absent highly unusual circumstances." 389 Orange St. Partners 7 v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 8 Here, it is clear that the Report suffers from a clear factual error: petitioner timely filed a

9 traverse that should have been considered in the preparation of the Report. Accordingly, IT IS 10 ORDERED: 11 12 1. 2. Petitioner's motion for reconsideration is GRANTED. The magistrate judge shall prepare a Report taking into account the entire record in

13 this case, including petitioner's traverse. 14 3. Petitioner's request for an enlargement of time to file objections to the Report is

15 DENIED AS MOOT. 16 IT IS SO ORDERED.

17 DATED: October 20, 2010 18 19 20 COPY TO: 21 HON. WILLIAM McCURINE, JR. UNITED STATES MAGISTRATE JUDGE 22 23 ALL PARTIES/COUNSEL 24 25 26 27 28
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09cv708

M. James Lorenz United States District Court Judge