Hughes v. Nevada Department Of Corrections et al

Filing 46

ORDER DENYING Petitioner's 39 Motion for District Judge to Reconsider Order. Signed by Judge Howard D. McKibben on 11/7/12. (Copies have been distributed pursuant to the NEF - JK)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
DISTRICT OF NEVADA
7
8
MICHAEL RAY HUGHES,
9
Petitioner,
10
vs.
11
12

NEVADA DEPARTMENT OF
CORRECTIONS, et al.,

13
Respondents.
14

)
)
)
)
)
)
)
)
)
)
)
/

3:11-cv-00355-HDM-WGC
ORDER

15
16
On May 31, 2012, the court granted respondents’ motion to dismiss this petition as
17
untimely (ECF #37), and judgment was entered (ECF #38). Before the court is plaintiff’s motion for
18
district judge to reconsider the order granting the motion to dismiss (ECF #39).
19
Where a ruling has resulted in final judgment or order, a motion for reconsideration may
20
be construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure
21
59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J
22

Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994).

23
Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order
24
for the following reasons:
25
26

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud

1

4

(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief
from the operation of the judgment.

5

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

6

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

7

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

8

decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986),

9

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

10

Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be filed no later

11

than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P. 59(e) “should

12

not be granted, absent highly unusual circumstances, unless the district court is presented with newly

13

discovered evidence, committed clear error, or if there is an intervening change in the controlling law.”

14

Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253,

15

1255 (9th Cir. 1999).

2
3

16

In the order of May 31, 2012, the court granted respondents’ motion to dismiss the

17

petition because the petition was not timely filed and was not entitled to statutory or equitable tolling

18

(ECF #37). Petitioner has failed to make an adequate showing under either Rule 60(b) or 59(e) that this

19

court’s order granting the motion to dismiss his petition should be reversed.

20
21
22

IT IS THEREFORE ORDERED that petitioner’s motion for district judge to reconsider
order (ECF #39) is DENIED.
Dated this 7th day of November, 2012.

23
24
25
UNITED STATES DISTRICT JUDGE
26
2