Tummino v. United States of America et al

Filing 59

ORDER - Plaintiff's motion for reconsideration is DENIED. IT IS SO ORDERED. Signed on 2/10/10 by Magistrate Judge John V. Acosta. (peg)

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10 IN T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T OF O R E G O N P O R T L A N D DIVISION CHARLES TUMMINO, Plaintiff, v. U N I T E D S T A T E S OF A M E R I C A , INTERNAL R E V E N U E SERVICE, Defendant. A C O S T A , Magistrate J u d g e 06-CV -00955-AC ORDER O n D e c e m b e r 1 4 , 2 0 0 9 , the court entered an order granting d e f e n d a n t s ' motion for s u m m a r y j u d g m e n t . O n D e c e m b e r 23, 2 0 0 9 , t h e c o u r t c o n v e n e d a t e l e p h o n e s t a t u s c o n f e r e n c e to determine the status o f the case and the parties' respective positions o n w h a t issues, i f any, remained to be resolved i n the case. Plaintiff, who is proceeding p r o se, responded t h a t he d i s p u t e d the c o r r e c t n e s s o f the c o u r t ' s s u m m a r y j u d g m e n t r u l i n g because, h e c o n t e n d e d , u p o n r e v i e w i n g t h e d o c u m e n t s h e " f o u n d t h e r e are i s s u e s o f m a t e r i a l f a c t . " P l a i n t i f f t h e n g a v e a d e t a i l e d s u m m a r y i n s u p p o r t o f h i s p o s i t i o n . U l t i m a t e l y , t h e c o u r t d e c l a r e d t h a t it w o u l d t r e a t Page I - ORDER plaintiffs oral challenge to the c o u r t ' s summary judgment ruling as a motion for reconsideration o f that ruling. The court set dates b y which defendants were to file any written response to p l a i n t i f f s motion and plaintiff was to file any reply. Subsequently, both the defendants and plaintiff filed their respective briefs b y the scheduled dates. The court has reviewed those briefs, as well as its December 14, 2010, opinion and order, and the relevant portions o f the record in this case, and it denies p l a i n t i f f s motion for reconsideration. A d i s t r i c t c o u r t m a y r e c o n s i d e r i t s g r a n t o f s u m m a r y j u d g m e n t u n d e r e i t h e r Federal R u l e o f Civil Procedure 59(e) or 60(b). School Dist. No. IJ, Multnoll1ah County, OR v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Under Rule 59(e), reconsideration is appropriate i f n e w l y discovered evidence is presented, or i f the c o u r t ' s initial decision was clear error or manifestly unjust, or i f t h e r e is a a n intervening change in the controlling law. Id. a t 1263. In addition, reconsideration is warranted where "other, highly unusual circumstances" exist. Id. Under Rule 60(b), reconsideration is appropriate only upon a showing o f " o f ( 1 ) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) 'extraordinary circumstances' which would justify relief." School Dist. No. IJ, Multnoll1ah County, OR v. ACandS, Inc., 5 F.3d at 1263. Under either Rule 59(e) or Rule 60(b), plaintiff is not entitled to reconsideration. P l a i n t i f f s position, as expressed during the December 2 3 , 2 0 0 9 , status conference and in his written Response to United States' Response to Motion for Reconsideration (docket number 58), is t h a t m a t e r i a l fact q u e s t i o n s e x i s t ; m o r e p r e c i s e l y , t h a t h i s s u p p o r t i n g d o c u m e n t s s u b m i t t e d i n response to the defendants' summaty judgment motion largely disprove the defendants' position regarding his tax liability. The c o u r t ' s summaty judgment ruling fully accounted for the evidence produced by both parties o n summary judgment and the extent to the which that Page 2 - O R D E R evidence was both admissible and relevant. Plaintiff does not meet Rule 5 9 ( e ) ' s standard, as he makes no claim that he has discovered new evidence or that a n intervening change in the law has occurred, his arguments do not demonstrate that the court's prior ruling was either clear error or manifestly unjust, and he otherwise presents no "other, highly unusual circumstances" which would warrant a change in the c o u r t ' s prior mling. Nor does plaintiff meet Rule 60(b)'s standard by showing mistake, surprise, 01' excusable neglect; newly discovered evidence; fraud; a void judgment; a satisfied or discharged judgment; or extraordinary circumstances. In sum, no legal basis exists upon which to reconsider the c o u r t ' s prior ruling on summary judgment. Accordingly, p l a i n t i f f s motion for reconsideration is DENIED. IT IS SO ORDERED. D A T E D this / / ) . . / { d a y o f F e b m a r y , 2 0 1 0 ( / --"·::::::/·dl~J01HN~v~.LA:LCjO::::ST=A===- U p p e d S t a t e s M a g i s t r a t e Judge Page 3 - ORDER

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