Daley v. CVS Pharmacy Inc

Filing 36

ORDER. IT IS ORDERED that 35 Plaintiff Richard Daley's Mandatory Judicial Notice to Correct Error which the court construes as a motion for reconsideration, is DENIED. Signed by Magistrate Judge Carl W. Hoffman on 10/3/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD DALEY,

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Plaintiff,
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vs.
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CVS PHARMACY, INC.,
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Defendant.
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__________________________________________)

Case No. 2:16-cv-02693-JCM-CWH
ORDER

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Presently before the court is Plaintiff Richard Daley’s Mandatory Judicial Notice to Correct

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Error (ECF No. 35), filed on September 28, 2017. The court construes this filing as a motion for

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reconsideration of its order (ECF No. 25) denying Mr. Daley’s motion for default judgment.

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The court denied Mr. Daley’s motion for default judgment because Defendant CVS

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Pharmacy, Inc. filed a timely motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure,

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and therefore did not fail to plead or otherwise respond to the complaint under Rule 55. (Order

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(ECF No. 25) at 2.) Mr. Daley appealed this order. (Notice of Appeal (ECF No. 26); Am. Aff. in

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Support of Notice of Appeal (ECF No. 27).) The United States Court of Appeals for the Ninth

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Circuit dismissed the appeal on the grounds that an order denying a motion for default judgment is

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not final or appealable and that a magistrate judge’s order is not final or appealable. (Order (ECF

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No. 31).) Mr. Daley now moves for reconsideration of the court’s order on his motion for default

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judgment, arguing that the defendant did not rebut the allegations in his affidavit in support of

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default judgment and that he is entitled to judgment in the amount of $5,000,000.

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“The court possesses the inherent power to reconsider an interlocutory order for cause, so

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long as the court retains jurisdiction.” Local Rule 59-1(a); see also City of Los Angeles v. Santa

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Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (stating that the court may reconsider an

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interlocutory order so long as it retains jurisdiction over the case). “Reconsideration also may be

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appropriate if (1) there is newly discovered evidence that was not available when the original

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motion or response was filed, (2) the court committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” LR 59-1(a).

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Mr. Daley does not point to newly discovered evidence that was not available when he filed

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his motion for default judgment. Nor does he establish that the court committed clear error, that

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the court’s order was manifestly unjust, or that there was an intervening change in controlling law.

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The court therefore declines to reconsider its previous order.

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IT IS THEREFORE ORDERED that Plaintiff Richard Daley’s Mandatory Judicial Notice

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to Correct Error (ECF No. 35), which the court construes as a motion for reconsideration, is

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DENIED.

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DATED: October 3, 2017
______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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