James v. Agnew et al

Filing 129

ORDER denying 128 Plaintiff's Motion for Reconsideration. Signed by Magistrate Judge Mitchell D. Dembin on 1/12/2017. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KYLE JAMES,

Case No.: 15cv409-AJB-MDD
Plaintiff,

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v.

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DEPUTY AGNEW and DEPUTY
TADE,

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Defendants.

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ORDER DENYING PLAINTIFF'S
MOTION FOR
RECONSIDERATION
[ECF No. 128]

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Currently before the Court is Plaintiff’s motion for reconsideration

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[ECF No. 128] and Plaintiff’s declaration in support of his motion for

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reconsideration [ECF No. 126]. For the reasons set forth below, Plaintiff’s

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motion is DENIED.

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BACKGROUND

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis

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pursuant to 42 U.S.C. § 1983. Plaintiff’s 42 U.S.C. § 1983 complaint alleges

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that Defendant Tade violated his civil rights by using excessive force during

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an incident on August 13, 2014. (ECF No. 12).

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On November 28, 2016, Plaintiff constructively filed a “motion
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15cv409-AJB-MDD

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requesting more time for discovery and to delay summary judgment

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proceedings.” (ECF No. 111). The Court denied Plaintiff’s motion on

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December 16, 2016. (ECF No. 115). On December 27, 2016, Plaintiff

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constructively filed a motion for reconsideration on the Court’s December 16,

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2016, Order [ECF No. 128] and Plaintiff’s declaration in support of his motion

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for reconsideration [ECF No. 126].
DISCUSSION

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Pursuant to Federal Rule of Civil Procedure 60(b),
[o]n motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order or proceeding for
the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other
reason that justifies relief.
Fed. R. Civ. P. 60(b).
Further, Local Rule 7.1(i)(1) provides that a party may apply for

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reconsideration “[w]henever any motion or any application or petition for any

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order or other relief has been made to any judge and has been refused in

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whole or in part . . .” S.D. Cal. Civ.L.R. 7.1(i). The party seeking

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reconsideration must show “what new or different facts and circumstances

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are claimed to exist which did not exist, or were not shown, upon such prior

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application.” Id.

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Plaintiff’s original motion requesting an extension of discovery and to

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delay summary judgment sets forth five arguments: (1) summary judgment

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proceedings should be postponed until discovery requests are answered; (2)
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15cv409-AJB-MDD

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Defendants waived their objections by failing to respond to Plaintiff’s

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discovery requests; (3) Plaintiff’s discovery requests are relevant to proving

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punitive damages; (4) Plaintiff’s discovery requests are relevant to disproving

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Defendants’ defenses; and (5) there is good cause to extend discovery because

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Defendants have intentionally stalled responding to discovery and Plaintiff’s

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transfer to prison delayed his ability to propound discovery. (ECF No. 111 at

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2-12).

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In the instant motion, Plaintiff argues that the Court’s December 16,

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2016, Order was made in clear error. (ECF No. 128 at 4). Plaintiff asserts

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that “[t]he [C]ourt should have granted the Plaintiff at least one extension for

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discovery” because Defendants intentionally delayed responding to Plaintiff’s

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discovery requests and other delays were caused by Plaintiff’s “multiple

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transfers from facility to facility during the discovery phase.” (Id. at 4).

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Plaintiff also contends that his discovery requests are relevant to disprove

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Defendants’ defenses and that Defendants waived their objections by failing

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to respond to Plaintiff’s discovery requests. (Id. at 5-7). Plaintiff’s

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declaration reiterates each of his arguments. (ECF No. 126).
Plaintiff’s arguments in his November 28, 2016, motion are identical to

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Plaintiff’s arguments in the instant motion for reconsideration. (See ECF

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Nos. 111, 128). Plaintiff does not present the Court with newly discovered

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evidence or new or different facts or circumstances. Rather, Plaintiff’s motion

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for reconsideration shows that Plaintiff merely disagrees with the Court’s

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December 16, 2016, Order. This is insufficient to warrant reconsideration of

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the Court’s prior order. See Kona Enter., Inc. v. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000), quoting 389 Orange St. Partners v. Arnold, 179 F.3d

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656, 665 (9th Cir. 1999).

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//
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15cv409-AJB-MDD

CONCLUSION

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For the reasons stated herein, Plaintiff’s motion for reconsideration is
DENIED.
IT IS SO ORDERED.

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Dated: January 12, 2017

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