Gebhart v. McHugh

Filing 14

ORDER granting ECF No. 12 Motion to Grant Summary Judgment or Reverse Motion to Dismiss, which the Court construed as a motion for reconsideration; Plaintiff is granted an additional 30 days to serve the proper persons; if Plaintiff fail s to serve the appropriate persons, the case will be dismissed; the Court's Order granting Defendant's Motion to Dismiss ECF No. 11 is vacated; Defendant's Motion to Dismiss ECF No. 8 is denied without prejudice and with leave to refile as appropriate. Signed by Judge Miranda M. Du on 08/24/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RICHARD GEBHART,

Case No. 3:15-CV-00221-MMD-VPC
Plaintiff,

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ORDER
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v.

(Def’s Motion to Dismiss – ECF No. 8)

JOHN McHUGH, SECRETARY OF THE
ARMY,

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Defendant.
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Plaintiff Richard Gebhart filed a complaint alleging he was discriminated against

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based on his age and disability and was retaliated against for filing an EEO complaint.

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(ECF No. 4.) Defendant John McHugh, Secretary of the Army, filed a Motion to Dismiss

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(“Motion to Dismiss”) under Fed. R. Civ. P. 8(a), 10(b), 12(b)(1), 12(b)(2), and 12(b)(5)

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on January 19, 2016. (ECF No. 8.) Rather than filing his response, Plaintiff sent an ex

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parte letter to the Court. The Court advised Plaintiff that the letter was not an appropriate

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response, it would be disregarded, and the Court would not take any action in response

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to it. (ECF No. 10.) Plaintiff did not file a response to the Motion to Dismiss. The Court

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granted the Motion to Dismiss based on Defendant’s argument that Plaintiff failed to

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serve Defendant according to Fed. R. Civ. P. 4(i). (ECF No. 11.)

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Plaintiff has now filed a Motion to Grant Summary Judgment OR Reverse Motion

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to Dismiss (“Motion”). (ECF No. 12.) The Court construes the Motion as a motion for

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reconsideration, because there are no claims upon which Plaintiff may seek summary

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judgment. Furthermore, Plaintiff begins his Motion by making clear that he is seeking

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reconsideration or appeal. (Id. at 1.) Defendant has filed a response opposing the

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Motion. (ECF No. 13.)

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A motion to reconsider must set forth “some valid reason why the court should

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reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to

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persuade the court to reverse its prior decision.” Frasure v. United States, 256

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F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is

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presented with newly discovered evidence, (2) committed clear error or the initial

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decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”

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Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for

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reconsideration is not an avenue to re-litigate the same issues and arguments upon

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which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280,

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1288 (D. Nev. 2005).

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Plaintiff’s Motion describes his difficulty finding an attorney to represent him and

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his understandable confusion and frustration with attempting to prosecute his case pro

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se. Importantly, for the purposes of the Motion, Plaintiff describes significant confusion

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and miscommunication in regards to his attempt to file a response to Defendant’s Motion

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to Dismiss. (ECF No. 12 at 3.) Indeed, Plaintiff’s February 3, 2016 letter to the Court –

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though an inappropriate means of attempting to establish this fact – indicates that he did

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not receive Defendant’s Motion to Dismiss until weeks after it was filed. (ECF No. 10 at

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2.) Given this purported delay and difficulty, and given Plaintiff’s apparent ability to now

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properly file documents with the Court, the Court finds that Plaintiff has provided a valid

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reason for the Court to reconsider, and that the interests of justice require

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reconsideration of its order granting Defendant’s Motion to Dismiss.

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It is therefore ordered that Plaintiff’s Motion to Grant Summary Judgment or

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Reverse Motion to Dismiss (ECF No. 12), which the Court has construed as a motion for

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reconsideration, is granted. Plaintiff is granted an additional 30 days from the entry of

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this Order to serve the proper persons, as identified in Fed. R. Civ. P. 4(i) and in
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Defendant’s Motion to Dismiss. If Plaintiff fails to serve the appropriate persons, the case

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will be dismissed.

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The Court’s order granting Defendant’s Motion to Dismiss (ECF No. 11) is

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vacated. Defendant’s Motion to Dismiss (ECF No. 8) is denied without prejudice and with

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leave to refile as appropriate.

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DATED THIS 24th day of August 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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