Rothing v. Lambert et al
Filing
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ORDER denying as moot 34 Motion to Clarify; denying 35 Motion to Supplement; denying 36 Motion to Conform Pleadings to the Evidence ; denying 38 Motion for Reconsideration. Signed by Magistrate Judge Carolyn S Ostby on 5/16/2014. Mailed to Rothing with copy of 15 as directed. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
PETER ROTHING,
CV 13-00086-BU-CSO
Plaintiff,
ORDER
vs.
MARTY LAMBERT, JOE SKINNER,
and STEVE WHITE,
Defendants.
Plaintiff Peter Rothing (“Rothing”) has filed a Motion for
Clarification (ECF 34), a Motion to Supplement Pleadings (ECF 35), a
Motion to Conform Pleadings to the Evidence (ECF 36), and a Motion
for Reconsideration (ECF 37).
I. MOTION FOR CLARIFICATION
Rothing indicates he is confused with regard to the Court’s
reference to an incomplete brief in its Order of March 24, 2014 and asks
“what remedy the court seeks.” ECF 34 at 2. The Court has ruled on
Defendants Lambert, Skinner and White’s Motion to Dismiss for
Failure to Effectuate Service taking into consideration Rothing’s
response as filed. The motion was granted on March 24, 2014, and
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Rothing has until June 6, 2014 to file proof of proper service upon these
Defendants. Except for filing proof of proper service, nothing further is
required of Rothing in this respect.
In his motion, Rothing indicates he does not have access to the
electronic record because he is a self-represented litigant. This is
incorrect. Rothing can view the electronic record via the internet or at
any of the federal courthouses in Montana. The Administrative Office
of U. S. Courts provides a system called PACER - Public Access to Court
Electronic Records. It can be accessed at www.pacer.gov. More
information about the PACER system is available at the Court’s website
www.mtd.uscourts.gov. In addition, Rothing was given notice of his
right to consent to electronic service of documents, another method by
which he would receive electronic copies of all documents filed in his
case (including his own filings). ECF 15–Notice and Consent to
Electronic Service. The Clerk of Court will be directed to provide
Rothing another copy of this document.
II. MOTION TO SUPPLEMENT and MOTION TO CONFORM
The Court has construed Rothing’s Motion to Supplement (ECF
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35) and Motion to Conform Pleadings to the Evidence (ECF 36) as
motions to amend pursuant to Rule 15 of the Federal Rules of Civil
Procedure. Rule 15(a) of the Federal Rules of Civil Procedure provides
that after a responsive pleading has been filed, a party may amend its
pleading only with the opposing party’s written consent or leave of
court. Rothing indicates that opposing counsel objects to his motions,
therefore, he needs leave of court to amend his pleadings.
Leave to amend should be given freely when justice so requires.
Fed.R.Civ.P. 15(a)(2). “But a district court need not grant leave to
amend where the amendment: (1) prejudices the opposing party; (2) is
sought in bad faith; (3) produces an undue delay in litigation; or (4) is
futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951
(9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 758 (9th Cir.
1999)).
Local Rule 15.1 requires that when a party moves for leave to
amend or supplement a pleading, the proposed pleading must be
attached to the motion as an exhibit. Rothing has not complied with
this rule, making it impossible to determine precisely what additions he
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is seeking to make to his pleadings. He appears to be rearguing his
general allegations that the named Judges engaged in misconduct
during his state court proceedings. Rothing argues that the Judges
violated the Code of Judicial Conduct (ECF 35–Mtn to Supplement at 2)
and failed to follow the State Handbook for self represented litigants
and the National Bench Guide. ECF 37–Brief in Support of Mtn to
Conform at 1-3.
The March 24, 2014 Order dismissed the Judges based on the
Rooker-Feldman doctrine and judicial immunity. ECF 31–March 24,
2014 Order at 7-13. Nothing in Rothing’s current filings disrupts this
finding. He continues to challenge judicial actions for which the Judges
have judicial immunity. See Ashelman v. Pope, 793 F.2d 1072, 1078
(9th Cir. 1986). Any amendment seeking to bring additional claims
against the Judges for actions taken in the course of their official duties
are futile. The Motion to Supplement (ECF 35) and the Motion to
Conform Pleadings to the Evidence (ECF 36) will be denied.
III. MOTION FOR RECONSIDERATION
Local Rule 7.3(a) requires parties to obtain leave of court prior to
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filing any motion for reconsideration. Accordingly, Rothing’s Motion for
Reconsideration will be treated as a motion for leave to file a motion for
reconsideration and as such it is denied.
Local Rule 7.3(b) requires that motions for leave to file a motion
for reconsideration must meet at least one of the following two criteria:
(1)
(A)
(B)
(2)
the facts or applicable law are materially
different from the facts or applicable law that the
parties presented to the Court before entry of the
order for which reconsideration is sought, and
despite the exercise of reasonable diligence, the
party applying for reconsideration did not know
such fact or law before entry of the order; or
new material facts emerged or a change of law occurred
after entry of the order.
Rothing has made no such showing. His current motion simply restates
his prior arguments which is a violation of Local Rule 7.3(c) which
provides:
No motion for leave to file a motion for reconsideration may
repeat any oral or written argument made by the applying
party before entry of the order. Violation of this restriction
subjects the offending party to appropriate sanctions.
There is no showing of materially different facts or law or that new
material facts have emerged or that there has been a change in the law.
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The Judges have been dismissed on the grounds of the Rooker-Feldman
doctrine and judicial immunity (not qualified immunity which is
discussed in Rothing’s brief). These are questions of law to be
determined by the Court. Crooks v. Maynard, 913 F.2d 699, 700 (9th
Cir. 1990). The Motion for Reconsideration will be denied.
IT IS ORDERED:
1. Rothing’s Motion for Clarification (ECF 34) is DENIED as
MOOT.
2. Rothing’s Motion to Supplement (ECF 35) is DENIED.
3. Rothing’s Motion to Conform Pleadings to the Evidence (ECF
36) is DENIED.
4. Rothing’s Motion for Reconsideration (ECF 38) is DENIED.
5. The Clerk of Court is directed to provide Rothing with a copy of
the Notice and Consent to Electronic Service. ECF 15.
DATED this 16th day of May, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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