Dance v. United States of America
Filing
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ORDER denying Petitioner's 21 Motion to Alter or Amend the Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Dkt. # 21 . Signed by Judge Ricardo S Martinez. (PM) cc: Petitioner via first class mail
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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DAVID RICHARD DANCE,
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Petitioner,
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v.
UNITED STATES OF AMERICA,
Respondent.
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) CASE NO. C17-0156RSM
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) ORDER DENYING PETITIONER’S
) MOTION FOR RECONSIDERATION
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THIS MATTER comes before the Court on Petitioner’s Motion to Alter or Amend
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Judgment pursuant to Federal Rule of Civil Procedure 59(e), which he also calls a Motion for
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Reconsideration. Dkt. #21. Petitioner asserts that the Court committed a clear error in finding
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that he compounded and nearly tripled the losses suffered by his clients and victims after he
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became aware of the Amendola fraud on July 21, 2011. Id. The government opposes the motion
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on the grounds that is untimely and introduces no new facts or law not already considered by the
Court previously. Dkt. #22. For the reasons set forth below, the Court DENIES the motion.
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On February 2, 2017, Petitioner filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or
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Correct Sentence. Dkt. # 1. Petitioner challenged the 48-month sentence imposed on him by
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this Court after he pleaded guilty to one count of Wire Fraud in violation of 18 U.S.C. § 1343,
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on the basis of ineffective assistance of counsel. USA v. Dance, CR15-0349RSM at Dkts. #6,
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#10 and #17. On August15, 2017, the Court denied Petitioner’s motion. Dkt. #20. The instant
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motion followed on September 12, 2017. Dkt. #21.
ORDER
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The Court first addresses the timeliness of the motion. A motion for relief from judgment
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under Federal Rule of Civil Procedure Rule 59(e) must be filed within 28 days of the entry of
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judgment, and should be granted when the Court: “(1) is presented with newly discovered
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evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is
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an intervening change in the controlling law.” In re Syncor ERISA Litigation, 516 F.3d 1095,
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1100 (9th Cir. 2008) (citation omitted); Fed. R. Civ. P. 59(e). After the denial of Petitioner’s
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motion under Section 2255, there was no Judgment entered against Plaintiff because no Judgment
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was required. Accordingly, Rule 59(e) is inapplicable.1
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To the extent that Petitioner intended this motion to be one for reconsideration under
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Local Civil Rule 7(h), the motion is untimely, as such motions “shall be filed within fourteen
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days after the order to which it relates is filed.” LCR 7(h). However, to the extent that Petitioner
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intended this motion to be one for reconsideration under Local Criminal Rule 12(b)(10), that
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Rule does not set forth the timing to make such motion, and it is therefore arguably timely. See
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LCrR 12(b)(10). Accordingly, in an abundance of caution, the Court will address Petitioner’s
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motion.
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“Motions for reconsideration are disfavored. The court will ordinarily deny such motions
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in the absence of a showing of manifest error in the prior ruling or a showing of new facts or
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legal authority which could not have been brought to its attention earlier with reasonable
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diligence.” LCrR 12(b)(10). In his current motion, Petitioner essentially reiterates the same
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arguments he made in his initial motion with respect to the alleged miscalculation of the actual
losses suffered by his clients and victims. Compare Dkt. #1 with Dkt. #21. The Court considered
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Moreover, the most recent Judgment against Petitioner in his criminal case was April 5, 2017.
Case No. CR15-0349RSM, Dkt. #53. Thus, any Rule 59(e) motion related to that Judgment
would be untimely.
ORDER
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those arguments and rejected them as discussed in its Order. See Dkt. #20. Nothing presented
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by Petitioner in the instant motion reflects a clear error in that decision, or persuades the Court
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that it made any error in reaching its decision.
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Accordingly, the Court hereby finds and ORDERS that Petitioner’s Motion to Alter or
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Amend the Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Dkt. #21) is DENIED.
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DATED this 4 day of October, 2017.
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A
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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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ORDER
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