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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VIRGIL POPESCU,

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vs.

CASE NO. 13CV564 BEN (JLB)
Plaintiff,

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

ORDER DENYING MOTION FOR
RECONSIDERATION
[Docket No. 38]

Defendant.

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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.
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“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).
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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
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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.
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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
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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.
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IT IS SO ORDERED.

23 DATED: October 1, 2014
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Hon. Roger T. Benitez
United States District Judge

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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.
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13cv564