Ryan v. Hyden et al

Filing 21

ORDER Denying Plaintiff's 20 Motion for Reconsideration. Plaintiff is advised this matter is closed and no further filings will be accepted. Signed by Judge Michael M. Anello on 5/12/2011. (All non-registered users served via U.S. Mail Service)(jer)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYKAL S. RYAN, CASE NO. 10 CV 1206 MMA (WVG) Plaintiff, 12 ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION vs. 13 14 TIMOTHY M. HYDEN, et al., Defendants. 15 16 [Doc. No. 20] On May 11, 2011, Plaintiff Mykal S. Ryan filed an “Objection to Decision and Motion to 17 Continue Prosecution of Case.” [Doc. No. 9.] The Court construes Plaintiff’s objection to the 18 dismissal of his case as a motion for reconsideration under Federal Rule of Civil Procedure 60(b).1 19 Rule 60(b) provides for reconsideration where one or more of the following is shown: (1) 20 mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due 21 diligence could not have been discovered before the court’s decision; (3) fraud by the adverse 22 party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying 23 relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. A Cand S Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 24 Further, under subparagraph (6), Plaintiff must show that there are extraordinary grounds 25 justifying relief; mere dissatisfaction with the court’s order or belief that the court is wrong in its 26 1 27 28 A motion to alter or amend a judgment must be made within twenty-eight (28) days of entry of judgment. Fed. R. Civ. P. 59(e). Here, the Court’s order was entered on November 2, 2010, and the present motion was filed on May 11, 2011, well beyond the twenty-eight day period. As such, the motion to reconsider is untimely under Rule 59(e) and should be considered under Rule 60(b). Am. Ironworks & Erectors, Inc. v. N. Am. Contr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). -1- 10cv1206 1 decision are not adequate grounds for relief. Twentieth Century -- Fox Film Corp. v. Dunnahoo, 2 637 F.2d 1338, 1341 (9th Cir. 1981). Rule 60(b)(6) “is used sparingly as an equitable remedy to 3 prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a 4 party from taking timely action to prevent or correct an erroneous judgment.” Latshaw v. Trainer 5 Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006). 6 On November 2, 2010, the Court dismissed the remaining defendant in this action, Lee M. 7 Quick, on the ground that Plaintiff failed to serve Defendant Quick within the time permitted by 8 Federal Rule of Civil Procedure 4(m). [Doc. No. 15.] Consequently, the case was terminated.2 9 [Doc. No. 16.] Plaintiff’s pending motion does not identify any ground that might entitle him to 10 relief from the final judgment entered on November 2, 2010. Plaintiff merely asserts that because 11 he suffers from Post Traumatic Stress Disorder (PTSD), the Court should allow him to prosecute 12 his case “as a reasonable accommodation for [his] PTSD disability.” [Doc. No. 20, ¶21.] Plaintiff, 13 however, provides no authority indicating the requested relief is appropriate or warranted. 14 Although the Court is sympathetic to the difficulties Plaintiff may suffer as a result of his PTSD, 15 based on the current record before the Court there are no grounds to alter, amend, or otherwise 16 reconsider the Court’s judgment in this case. Accordingly, given the procedural history of this 17 action, Plaintiff’s prior abandoned appeal, and Plaintiff’s failure to identify any legally cognizable 18 ground for reconsideration, the Court DENIES Plaintiff’s pending motion. Plaintiff is advised this 19 matter is closed and no further filings will be accepted. 20 IT IS SO ORDERED. 21 22 DATED: May 12, 2011 23 Hon. Michael M. Anello United States District Judge 24 25 26 27 28 2 The Court previously granted two unopposed motions to dismiss by the other named defendants for lack of personal jurisdiction and improper venue. [Doc. Nos. 6, 8.] -2- 10cv1206

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