Dance v. United States of America

Filing 24

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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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 DAVID RICHARD DANCE, 8 Petitioner, 9 10 11 v. UNITED STATES OF AMERICA, Respondent. 12 ) ) CASE NO. C17-0156RSM ) ) ORDER DENYING PETITIONER’S ) MOTION FOR RECONSIDERATION ) ) ) ) 13 THIS MATTER comes before the Court on Petitioner’s Motion to Alter or Amend 14 15 Judgment pursuant to Federal Rule of Civil Procedure 59(e), which he also calls a Motion for 16 Reconsideration. Dkt. #21. Petitioner asserts that the Court committed a clear error in finding 17 that he compounded and nearly tripled the losses suffered by his clients and victims after he 18 became aware of the Amendola fraud on July 21, 2011. Id. The government opposes the motion 19 20 21 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. 22 On February 2, 2017, Petitioner filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or 23 Correct Sentence. Dkt. # 1. Petitioner challenged the 48-month sentence imposed on him by 24 this Court after he pleaded guilty to one count of Wire Fraud in violation of 18 U.S.C. § 1343, 25 26 on the basis of ineffective assistance of counsel. USA v. Dance, CR15-0349RSM at Dkts. #6, 27 #10 and #17. On August15, 2017, the Court denied Petitioner’s motion. Dkt. #20. The instant 28 motion followed on September 12, 2017. Dkt. #21. ORDER PAGE - 1 The Court first addresses the timeliness of the motion. A motion for relief from judgment 1 2 under Federal Rule of Civil Procedure Rule 59(e) must be filed within 28 days of the entry of 3 judgment, and should be granted when the Court: “(1) is presented with newly discovered 4 evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is 5 an intervening change in the controlling law.” In re Syncor ERISA Litigation, 516 F.3d 1095, 6 7 1100 (9th Cir. 2008) (citation omitted); Fed. R. Civ. P. 59(e). After the denial of Petitioner’s 8 motion under Section 2255, there was no Judgment entered against Plaintiff because no Judgment 9 was required. Accordingly, Rule 59(e) is inapplicable.1 10 To the extent that Petitioner intended this motion to be one for reconsideration under 11 Local Civil Rule 7(h), the motion is untimely, as such motions “shall be filed within fourteen 12 13 days after the order to which it relates is filed.” LCR 7(h). However, to the extent that Petitioner 14 intended this motion to be one for reconsideration under Local Criminal Rule 12(b)(10), that 15 Rule does not set forth the timing to make such motion, and it is therefore arguably timely. See 16 LCrR 12(b)(10). Accordingly, in an abundance of caution, the Court will address Petitioner’s 17 18 motion. 19 “Motions for reconsideration are disfavored. The court will ordinarily deny such motions 20 in the absence of a showing of manifest error in the prior ruling or a showing of new facts or 21 legal authority which could not have been brought to its attention earlier with reasonable 22 diligence.” LCrR 12(b)(10). In his current motion, Petitioner essentially reiterates the same 23 24 25 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 26 27 28 1 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 PAGE - 2 1 those arguments and rejected them as discussed in its Order. See Dkt. #20. Nothing presented 2 by Petitioner in the instant motion reflects a clear error in that decision, or persuades the Court 3 that it made any error in reaching its decision. 4 Accordingly, the Court hereby finds and ORDERS that Petitioner’s Motion to Alter or 5 Amend the Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Dkt. #21) is DENIED. 6 7 DATED this 4 day of October, 2017. 8 A 9 10 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 3

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