Popescu v. California Department of Corrections and Rehabilitations et al

Filing 39

ORDER Denying 38 Motion for Reconsideration. The October 20, 2014 hearing date is vacated. Signed by Judge Roger T. Benitez on 10/1/2014. (All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 VIRGIL POPESCU, 11 12 13 14 15 vs. CASE NO. 13CV564 BEN (JLB) Plaintiff, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ORDER DENYING MOTION FOR RECONSIDERATION [Docket No. 38] Defendant. 16 17 On September 22, 2014, Plaintiff submitted a Motion for Reconsideration of the 18 Order Granting Defendant’s Motion to Dismiss Plaintiff’s Complaint. (Docket No. 19 38.) Plaintiff’s motion is DENIED. 20 “Reconsideration is appropriate if the district court (1) is presented with newly 21 discovered evidence, (2) committed clear error or the initial decision was manifestly 22 unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, 23 Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 24 Plaintiff has not identified any new evidence or new law. He identifies no new 25 evidence and the cases he cites are not recent. He simply repeats arguments previously 26 made and requests oral argument because he believes the Court may only consider the 27 merits of his argument in person. However, “[a] motion for reconsideration is not an 28 opportunity to renew arguments considered and rejected by the court, nor is it an -1- 13cv564 1 opportunity for a party to re-argue a motion because it is dissatisfied with the original 2 outcome.” FTC v. Neovi, Inc., 2009 WL 56130, at *2 (S.D. Cal. Jan. 7, 2009) (quoting 3 Devinsky v. Kingsford, 2008 WL 2704338, at *2 (S.D.N.Y. July 10, 2008)). To the 4 extent Plaintiff is arguing the Court committed clear error, the Court disagrees. “Clear 5 error occurs when the ‘reviewing court on the entire record is left with the definite and 6 firm conviction that a mistake has been committed.’” Smith v. Clark Cnty. Sch. Dist., 7 727 F.3d 950, 955 (9th Cir. 2013). The Court finds no clear error. 8 Additionally, Plaintiff’s motion fails to comply with Civil Local Rule 7.1(i). 9 Under 7.1(i)(1), a party may apply for reconsideration of an order “[w]henever any 10 motion or any application or petition for any order or other relief has been made to any 11 judge and has been refused in whole or in part.” The moving party must provide the 12 court with an affidavit setting forth “what new or different facts and circumstances are 13 claimed to exist which did not exist, or were not shown” and the motion “must be filed 14 within twenty-eight days after the entry of the ruling, order or judgment sought to be 15 reconsidered.” CIVIL LOCAL RULE 7.1(i)(1)-(2). Although Plaintiff submitted an 16 affidavit, it did not identify any new facts or circumstances the Court should consider 17 and Plaintiff’s motion was not filed within 28 days of the Court’s ruling.1 18 Because Plaintiff has not identified any new law, new evidence, or clear error in 19 the Court’s prior decision, the Motion for Reconsideration is DENIED. The October 20 20, 2014 hearing date is vacated. 21 22 IT IS SO ORDERED. 23 DATED: October 1, 2014 24 Hon. Roger T. Benitez United States District Judge 25 26 27 1 The Court’s order granting the motion to dismiss was filed on August 21, 2014 and Plaintiff’s motion was not filed until September 22, 2014. Plaintiff’s motion was 28 not only untimely by the date he filed it, but also by the date he signed it, September 21, 2014. -2- 13cv564

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