Opinion
No. CV-18-02598-PHX-ESW
01-31-2019
Ralph Alvarado, Plaintiff, v. United States Government, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
Plaintiff filed a pro se civil Complaint (Doc.1) which the Court screened pursuant to 28 U.S.C. § 1915(a) and dismissed without prejudice for having failed to satisfy Federal pleading requirements (Docs. 6, 12). On December 27, 2018, the Court entered Judgment against the Plaintiff consistent with its Order (Doc. 13). On January 3, 2019, Plaintiff filed "Motion for discovery to Reopen this Case" (Doc. 14) which the Court considers a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) or motion for reconsideration. As Plaintiff fails to (i) articulate grounds which entitle him to relief from a judgment, and (ii) meet his burden of proof for reconsideration, the Magistrate Judge will recommend that Plaintiff's Motion (Doc. 14) be denied.
DISCUSSION
The Court in its discretion may grant relief from a final judgment for reasons enumerated in Fed. R. Civ. P. 60(b). To prevail on a Federal Rule of Civil Procedure 60(b) motion for relief from a final judgment or order, a litigant must show "(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. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).
Motions for reconsideration should be granted only in rare circumstances. See Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multonomah County, 5 F.3d at 1263; see also LRCiv 7.2(g)(1) ("The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence."). Such motions should not be used for the purpose of asking a court "to rethink what the court had already thought through - rightly or wrongly." Defenders of Wildlife v. Browner, 909 F.Supp 1342, 1351 (D. Ariz. 1995) (internal quotation marks and citation omitted).
Plaintiff's Motion (Doc. 14) fails to show any grounds for relief under Rule 60(b) and does not present any basis that warrants reconsideration of the Court's Order (Doc. 12) and Judgment (Doc. 13) dismissing the Complaint.
CONCLUSION
For the reasons set forth herein,
IT IS RECOMMENDED that Plaintiff's "Motion for discovery to Reopen this Case" (Doc. 14) be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 31st day of January, 2019.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge