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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 ERVIN MIDDLETON, 8 9 10 Plaintiff(s), vs. CITIBANK, N.A., INC., 11 Defendant(s). ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-00622-RFB-NJK ORDER 12 Pending before the Court is Plaintiff’s motion for magistrate judge to reconsider. Docket No. 13 4. The Court finds this motion properly resolved without oral argument. See Local Rule 78-2. For 14 the reasons discussed below, Plaintiff’s motion is DENIED. 15 On March 21, 2016, Plaintiff filed an application for leave to proceed in forma pauperis, 16 along with a complaint. Docket No. 1. On April 22, 2016, the Court granted Plaintiff leave to 17 proceed in forma pauperis and screened the complaint pursuant to 28 U.S.C. § 1915(e). Docket No. 18 2. The Court dismissed Plaintiff’s complaint with leave to amend. Id. at 3. On April 29, 2016, 19 Plaintiff filed a motion to reconsider, seeking reconsideration of the Court’s April 22, 2016, Order. 20 Docket No. 4. 21 Reconsideration is appropriate if the court: (1) is presented with newly discovered evidence; 22 (2) committed clear error, or the initial decision was manifestly unjust; or (3) if there is an 23 intervening change in controlling law. Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 24 2003). Reconsideration is “an extraordinary remedy, to be used sparingly and in the interests of 25 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 26 877, 890 (9th Cir. 2000) (internal quotation marks omitted). A motion for reconsideration is 27 properly denied where it presents no new arguments. See Backlund v. Barnhart, 778 F.2d 1386, 28 1 1388 (9th Cir. 1985). By the same token, however, it “may not be used to raise arguments or present 2 evidence for the first time when they could reasonably have been raised earlier in the litigation.” 3 Kona Enterprises, Inc., 229 F.3d at 890. 4 Construing Plaintiff’s motion liberally, the Court finds that it fails to meet the standard for 5 reconsideration. Plaintiff’s motion states dates and makes allegations that are not in his complaint. 6 Upon reviewing Plaintiff’s complaint and the Court’s prior order, the Court finds it prior order was 7 appropriate. 8 Plaintiff’s argument appears to depend on a misconception regarding the Court’s prior order. 9 The Court’s prior order did not result in the dismissal of Plaintiff’s case. See Docket No. 4 at 1. 10 Rather, the Court granted Plaintiff leave to file an Amended Complaint, if he believes that he can 11 correct the noted deficiencies. Docket No. 2 at 3. Accordingly, the filing of an Amended 12 Complaint, with all the relevant dates and allegations, is the proper procedural vehicle for Plaintiff 13 to remedy the defective complaint. 14 III. CONCLUSION 15 For the reasons discussed above, Plaintiff’s motion, Docket No. 4, is DENIED. Plaintiff 16 may file an Amended Complaint, no later than May 20, 2016, if he believes he can correct the 17 deficiencies the Court noted in its prior order. 18 IT IS SO ORDERED. 19 DATED: May 3, 2016 20 21 NANCY J. KOPPE United States Magistrate Judge 22 23 24 25 26 27 28 -2-

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