Torbert v. Gore et al
Filing
147
ORDER: (1) Denying Plaintiff's 136 Motion to Preserve a Claim of Error; (2) Denying Plaintiff's 138 Motion for Relief of Judgment; (3) Granting in Part Plaintiff's 140 Motion for Extension of Time; (4) Granting Defendant's 131 Motion for Reconsideration. Signed by Judge Roger T. Benitez on 2/4/2017. (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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JAVON LAMAR TORBERT,
Case No.: 3:14-cv-02911-BEN (NLS)
Plaintiff,
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v.
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WILLIAM D. GORE, Sheriff of San
Diego Sheriff Department; DEPUTY
DAILLY, Sheriff of San Diego Sheriff
Department; DEPUTY McMAHON,
Sheriff of San Diego Sheriff Department;
DEPUTY Y.G. GEBREBIORGIS, Sheriff
of San Diego Sheriff Department;
SERGEANT ESTRADA, Sheriff of San
Diego Sheriff Department; COUNTY OF
SAN DIEGO; and DOES 1-50,
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ORDER:
Defendants.
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(1) DENYING PLAINTIFF’S
MOTION TO PRESERVE A CLAIM
OF ERROR;
(2) DENYING PLAINTIFF’S
MOTION FOR RELIEF OF
JUDGMENT;
(3) GRANTING IN PART
PLAINTIFF’S MOTION FOR
EXTENSION OF TIME;
(4) GRANTING DEFENDANT’S
MOTION FOR
RECONSIDERATION
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Plaintiff Javon Lamar Torbert (“Plaintiff”), a prisoner proceeding pro se and in
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forma pauperis, filed this civil rights action on December 9, 2014. He alleges excessive
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force, cruel and unusual punishment, and deliberate indifference claims arising from an
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alleged incident where one of the Defendants slammed a metal door on Plaintiff’s left
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3:14-cv-02911-BEN (NLS)
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arm. After summary judgment, only one excessive force claim against one Defendant
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remains in the case. Now before the Court are four motions, three filed by Plaintiff and
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one by Defendant Dailly. The Court considers each in turn.
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I.
Plaintiff’s Motions
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Plaintiff has filed three motions: (1) motion to preserve a claim of error; (2)
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motion for relief of judgment; and (3) motion for change of address and extension of time
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for the pretrial conference and pretrial deadlines.
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A. Motion to Preserve a Claim of Error
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Plaintiff moves under Federal Rule of Evidence 103 to “preserve any errors
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pertaining to his claim of video surveillance on top of the cell door #4 of the medical
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isolation that was used in the incident and the errors pointed out in his opposition to
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defendant’s summary judgment.” (ECF No. 136). “The errors claimed by the plaintiff
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has [sic] affected his motions for discovery and opposition to defendant’s summary
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judgment.” (Id.) He asks the Court “to take judicial notice on all his motions of error
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and relieve of judgements [sic].” (Id.)
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This motion relates to Plaintiff’s repeated request to sanction Defendants for
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allegedly concealing the existence of a security camera that he claims recorded acts on
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October 2, 2014 that are at issue in this lawsuit. Plaintiff sought this alleged video
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footage during discovery, but Defendants responded that the footage Plaintiff sought does
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not exist. The Court found that there was no good cause to disbelieve Defendants’
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statement and denied several discovery motions for the footage. Later, Plaintiff sought to
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add a new claim against Defendants for “conspiracy to obstruct justice by committing
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declaration perjury under oath to fraudulently conceal the existence of the surveillance
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camera located above the isolation cell #4 for the incident of October 2, 2014.” (Mot. to
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Amend at 1, ECF No. 113). On October 26, 2016, this Court denied Plaintiff’s motion to
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amend. (Order, ECF No. 117). Plaintiff then moved for reconsideration of that order,
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which this Court denied on December 19, 2016, finding that Plaintiff’s motion sought to
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relitigate issues that have been considered and rejected several times. (Order, ECF No.
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3:14-cv-02911-BEN (NLS)
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130). The Court adopted its prior conclusion that allowing Plaintiff’s requested relief
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would prejudice Defendants and be futile. (Id.)
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Plaintiff’s motion to preserve a claim of error is DENIED. This is the sixth
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iteration of Plaintiff’s request to sanction Defendants for allegedly concealing the
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footage. Plaintiff has made his record.
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B. Motion for Relief of Judgment
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Plaintiff moves under Federal Rule of Civil Procedure 60(b) for relief from an
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order granting in part and denying in part Plaintiff’s motion to compel (ECF No. 69) and
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from the report and recommendation granting in part and denying in part Defendants’
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motion for summary judgment, and the order adopting the report and recommendation.
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(ECF Nos. 100, 109). He again contends that the video footage exists and that the Court
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misinterpreted his request. He also argues that the Court stated incorrect facts in the
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report and recommendation.
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Under Rule 60(b), a court may relieve a party from a final judgment, order, or
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proceeding upon a showing of mistake, newly discovered evidence, fraud, or “any other
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reason that justifies relief.” Fed. R. Civ. P. 60(b); see Latshaw v. Trainer Wortham &
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Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (explaining that the catch-all provision should
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be used sparingly as an equitable remedy to prevent manifest injustice). Motions for
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reconsideration “should not be granted, absent highly unusual circumstances.”
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Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660-J, 2007 WL 2456223, at *2
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(S.D. Cal. Aug. 23, 2007). “A motion for reconsideration may not be used to raise
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arguments or present evidence for the first time when they could reasonably have been
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raised earlier in the litigation.” Life Techs. Corp. v. Illumina, Inc., No. 11-cv-00703,
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2012 WL 10933209, at *1 (S.D. Cal. June 11, 2012) (quoting Kona Enters., Inc. v. Estate
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of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Moreover, motions to reconsider are not a
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platform to relitigate arguments and facts previously considered and rejected. See
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Harrison v. Sofamor/Danek Grp., Inc., No. 94-cv-0692, 1998 WL 1166044, at *3 (S.D.
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Cal. Sept. 15, 1998).
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3:14-cv-02911-BEN (NLS)
Plaintiff’s motion for relief of judgment is DENIED. As to the existence of the
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video footage, this motion is Plaintiff’s seventh attempt to litigate that issue. He has not
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stated proper grounds for a motion for reconsideration. Harrison, No. 94-cv-0692, at *3.
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With respect to the allegedly incorrect facts found by the Court in the report and
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recommendation, Plaintiff’s motion relates to facts about the October 2 incident. For
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instance, he challenges the Court’s explanation of why he was taken to the hospital and
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the misquoting of a medical chart.
The Court did not dismiss Plaintiff’s excessive force claim against Defendant
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Dailly for the October 2 incident. This claim remains, and Plaintiff can present his
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version of the facts to the jury, should this case go that far. Thus, even if the Court
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misstated certain facts—which this Court does not find—Plaintiff suffered no prejudice.
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To the extent Plaintiff challenges the dismissal of his deliberate indifference claim
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concerning the October 2 incident, none of Plaintiff’s complaints of incorrect facts are
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relevant to that dismissal. The report and recommendation and the order adopting the
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report and recommendation found that there was no genuine dispute whether Plaintiff
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suffered a serious medical need. He did not make an objective showing that he had such
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a need: “Plaintiff was injured in the evening and received pain medicine shortly after the
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injury. He was seen by medical staff the next morning and had numerous medical
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appointments to follow up on his injury. None of the medical exams revealed a lasting
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injury, and no doctor believed a neurology referral was necessary.” (Order at 3, ECF No.
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109). None of the facts that Plaintiff contends the Court stated incorrectly would disturb
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this analysis and the conclusion that he did not establish a serious medical need.
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Plaintiff also challenges the grant of summary judgment for Defendant on his
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claim for failure to return his cane. However, Plaintiff’s motion for relief does not state
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any grounds for reconsidering this conclusion. Plaintiff appears to restate the arguments
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he presented at summary judgment, which this Court rejected. As noted, courts deny
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motions for reconsideration based on arguments previously litigated and rejected.
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///
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C. Motion for Change of Address and Extension of Time
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Plaintiff has been transferred to a new institution and asks the Court to change his
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address. This request is GRANTED. The Clerk shall change Plaintiff’s address to:
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Javon Lamar Torbert #P-96193
D-3-129
P.O. Box 4670
Lancaster, CA 93539
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He also asks to continue the pretrial conference and pretrial deadlines by 60 days
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because he does not have his property as a result of his transfer. He needs to receive his
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property and “catch up” with anything he missed in the litigation. Defendant Dailly filed
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a notice of non-opposition to Plaintiff’s request.
The Court will GRANT Plaintiff’s motion IN PART. Plaintiff stated that he was
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transferred on December 28, 2016. Other than Plaintiff’s motion for an extension,
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nothing has been filed that requires Plaintiff’s response. The pretrial deadlines have
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already been extended once by 90 days, and that schedule has been set since October 28,
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2016. (ECF No. 122). To allow Plaintiff time to locate his property, the Court will
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extend the deadlines by 28 days. The pretrial deadlines will be as follows:
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Current Date
New Date
Event
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January 30, 2017
February 27, 2017
Pretrial Disclosure Requirements
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February 6, 2017
March 6, 2017
Meet/Confer (Local Rule 16.1(f)(4))
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February 13, 2017
March 13, 2017
Proposed Pretrial Order
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February 20, 2017
March 20, 2017
Pretrial Disclosures served and lodged
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February 27, 2017
March 28, 2017
at 10:30 am
Pretrial Conference
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II.
Defendant’s Motion for Reconsideration
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Defendant Dailly moves for reconsideration of the portion of the Court’s order
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granting Plaintiff’s motion to amend his complaint to withdraw his demand for a jury
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trial. (ECF No. 131). When Plaintiff filed his complaint, he demanded a jury trial.
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(Compl. at 7, ECF No. 1). On September 27, 2016, he moved to amend his complaint to
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reduce his request for punitive and compensatory damages and change his request for a
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jury trial to a bench trial. (ECF No. 106). Nine days later, on October 5, 2016, the Court
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granted Plaintiff’s request in the same order adopting the Magistrate Judge’s report and
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recommendation on Defendants’ motion for summary judgment. (ECF No. 109). The
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Court issued that order before Defendant was required to respond to Plaintiff’s motion to
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amend.
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Defendant’s motion for reconsideration is GRANTED. Once Plaintiff demanded a
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jury trial, Defendant Dailly was entitled to rely on that demand and did not need to file
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his own demand. Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir. 1995). “A
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proper demand may be withdrawn only if the parties consent.” Fed. R. Civ. P. 38(d).
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Defendant has not consented to a nonjury trial, and the Court has not found that there is
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no federal right to a jury trial on the issues remaining. Fed. R. Civ. P. 39(a). Therefore,
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the Court’s order was legally erroneous, and it would be unjust to make Defendant Dailly
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proceed in a bench trial. The Court thus vacates its prior grant of Plaintiff’s motion and
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denies his request for a bench trial.
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CONCLUSION
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As discussed above, the Court hereby ORDERS:
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Plaintiff’s motion to preserve a claim of error is DENIED. (ECF No. 136).
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Plaintiff’s motion for relief of judgment is DENIED. (ECF No. 138).
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Plaintiff’s motion for change of address and extension of time is GRANTED IN
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PART. The Clerk shall update Plaintiff’s address. The Court will extend the pretrial
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deadlines consistent with the schedule outlined above. (ECF No. 140).
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Defendant’s motion for reconsideration is GRANTED. (ECF No. 131).
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IT IS SO ORDERED.
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Dated: February 4, 2017
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