Bailey et al v. Suey et al

Filing 24

ORDER Denying 23 Motion for Reconsideration. Signed by Magistrate Judge Carl W. Hoffman on 1/31/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY BAILEY, et al.,

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Plaintiffs,
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vs.
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CPT. RICH SUEY, et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-01954-JCM-CWH
ORDER

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This matter is before the Court on Plaintiff’s Motion for Reconsideration (#23), filed
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January 24, 2013.
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Where a ruling has resulted in final judgment or order, a motion for reconsideration may
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be construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil
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Procedure 59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School
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Dist. No. 1J Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512
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U.S. 1236 (1994). Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment
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or order for the following reasons:
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(1) mistake, inadvertence, surprise, or excusable neglect;
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(2) newly discovered evidence which by due diligence could not have been
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discovered in time to move for a new trial under Rule 59(b);
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(3) fraud (whether heretofore denominated intrinsic or extrinsic),
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misrepresentation, or other misconduct of an adverse party;
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(4) the judgment is void;
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(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which
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it is based has been reversed or otherwise vacated, or it is no longer equitable that the
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judgment should have prospective application; or

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(6) any other reason justifying relief from the operation of the judgment.

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Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick Garin

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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a

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party must set forth facts or law of a strongly convincing nature to induce the court to reverse its

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prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal.

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1986), aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of

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the Federal Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall

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be filed no later than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R.

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Civ. P. 59(e) “should not be granted, absent highly unusual circumstances, unless the district court

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is presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting

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McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999).

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The Court may also exercise its inherent power to revise, correct, and alter interlocutory

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orders at any time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren, 259 F.2d

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101, 105 (9th Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir.

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2006). This authority is governed by the doctrine that a court will generally not reexamine an issue

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previously decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc. v.

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Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d

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1111, 1114 (9th Cir. 1998). However, a court has discretion to depart from the prior order when

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(1) the first decision was clearly erroneous, (2) there has been an intervening change of law, (3) the

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evidence on remand is substantially different, (4) other changed circumstances exist, or (5) a

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manifest injustice would otherwise result. Cuddy, 147 F.3d at 1114. A motion for reconsideration

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is properly denied when the movant fails to establish any reason justifying relief. Backlund v.

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Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985).

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It appears that Plaintiff is requesting reconsideration of this Court’s prior order (#21)

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denying his motion to appoint counsel. In denying the prior motion, the Court found that the

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“exceptional circumstances” necessary to support appointment of counsel “do not exist in this

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case.” This finding was consistent with another order denying a request for court appointed
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counsel. See Order (#14) at 3:7. As the Court noted, Plaintiff presented nothing in his prior

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motion (#17) to support the conclusion that “exceptional circumstances,” which did not exist at the

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time his initial request for counsel, now existed. Plaintiff now claims that the undersigned’s prior

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order was clearly erroneous because (1) the court will not “play fair” unless Plaintiff obtains

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appointed counsel, (2) Plaintiff does not have the means to prosecute his case, and (3) there is

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evidence supporting his claims. None of the reasons proffered by Plaintiff support reconsideration.

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Each has been previously considered. This is nothing more than Plaintiff reiterating the same

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arguments which have already been rejected. A motion for reconsideration should not merely

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present arguments previously raised; that is, a motion for reconsideration is not a vehicle permitting

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the unsuccessful party to reiterate arguments previously presented. See Merozoite v. Thorp, 52 F.3d

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252, 255 (9th Cir.1995); Khan v. Fasano, 194 F.Supp.2d 1134, 1136 (S.D.Cal.2001) (“A party

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cannot have relief under this rule merely because he or she is unhappy with the judgment.”).

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration (#23) is denied.

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DATED this 31st day of January, 2013.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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