Middleton v. Citibank, N.A. Inc.

Filing 5

ORDER denying ECF No. 4 Motion for Magistrate Judge to Reconsider Magistrate Judge Order. Signed by Magistrate Judge Nancy J. Koppe on 5/3/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERVIN MIDDLETON,

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Plaintiff(s),
vs.
CITIBANK, N.A., INC.,

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Defendant(s).

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Case No. 2:16-cv-00622-RFB-NJK
ORDER

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Pending before the Court is Plaintiff’s motion for magistrate judge to reconsider. Docket No.
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4. The Court finds this motion properly resolved without oral argument. See Local Rule 78-2. For
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the reasons discussed below, Plaintiff’s motion is DENIED.
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On March 21, 2016, Plaintiff filed an application for leave to proceed in forma pauperis,
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along with a complaint. Docket No. 1. On April 22, 2016, the Court granted Plaintiff leave to
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proceed in forma pauperis and screened the complaint pursuant to 28 U.S.C. § 1915(e). Docket No.
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2. The Court dismissed Plaintiff’s complaint with leave to amend. Id. at 3. On April 29, 2016,
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Plaintiff filed a motion to reconsider, seeking reconsideration of the Court’s April 22, 2016, Order.
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Docket No. 4.
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Reconsideration is appropriate if the court: (1) is presented with newly discovered evidence;
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(2) committed clear error, or the initial decision was manifestly unjust; or (3) if there is an
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intervening change in controlling law. Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.
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2003). Reconsideration is “an extraordinary remedy, to be used sparingly and in the interests of
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finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d
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877, 890 (9th Cir. 2000) (internal quotation marks omitted). A motion for reconsideration is
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properly denied where it presents no new arguments. See Backlund v. Barnhart, 778 F.2d 1386,
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1388 (9th Cir. 1985). By the same token, however, it “may not be used to raise arguments or present

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evidence for the first time when they could reasonably have been raised earlier in the litigation.”

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Kona Enterprises, Inc., 229 F.3d at 890.

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Construing Plaintiff’s motion liberally, the Court finds that it fails to meet the standard for

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reconsideration. Plaintiff’s motion states dates and makes allegations that are not in his complaint.

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Upon reviewing Plaintiff’s complaint and the Court’s prior order, the Court finds it prior order was

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appropriate.

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Plaintiff’s argument appears to depend on a misconception regarding the Court’s prior order.

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The Court’s prior order did not result in the dismissal of Plaintiff’s case. See Docket No. 4 at 1.

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Rather, the Court granted Plaintiff leave to file an Amended Complaint, if he believes that he can

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correct the noted deficiencies. Docket No. 2 at 3. Accordingly, the filing of an Amended

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Complaint, with all the relevant dates and allegations, is the proper procedural vehicle for Plaintiff

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to remedy the defective complaint.

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III.

CONCLUSION

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For the reasons discussed above, Plaintiff’s motion, Docket No. 4, is DENIED. Plaintiff

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may file an Amended Complaint, no later than May 20, 2016, if he believes he can correct the

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deficiencies the Court noted in its prior order.

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IT IS SO ORDERED.

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DATED: May 3, 2016

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NANCY J. KOPPE
United States Magistrate Judge

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