Summary
denying a motion in part because the movant “failed to provide any legal authority or new facts to support” the relief sought
Summary of this case from United States v. CastroOpinion
No. CV-11-0267-TUC-CKJ
06-27-2012
STEVEN MONTES, Plaintiff, v. STATE OF ARIZONA; CITY OF TUCSON, et al., Defendants.
ORDER
On June 5, 2012, Plaintiff filed his pro se Motion to Amend Complaint [Doc. 103]. On June 20, 2012, Plaintiff filed a Notice of Conflict of Interest [Doc. 104].
I. FACTUAL BACKGROUND
On June 5, 2012, this Court issued its Order [Doc. 101] screening and dismissing Plaintiff's [Fifth Amended] Complaint [Doc. 93]. Plaintiff filed yet another motion to amend his Complaint on the same date.
Plaintiff's Motion to Amend Complaint [Doc. 103] appears to be a Sixth Amended Complaint.
II. SIXTH AMENDED COMPLAINT
To the extent that Plaintiff's Sixth Amended Complaint may be deemed a motion for reconsideration, the Court will deny the motion.
As this Court has previously stated, "[t]he 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." LRCiv. 7.2(g). Federal Rule of Civil Procedure 60(b) provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. No. 1J, Multnomah County v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Subparagraph (6) requires a showing that the grounds justifying relief are extraordinary; mere dissatisfaction with the court's order or belief that the court is wrong in its decision are not adequate grounds for relief. See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Mere disagreement with a previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). Plaintiff has failed to provide any legal authority or new facts to support a motion for reconsideration. Accordingly, such motion is denied.
"The power to grant leave to amend, however, is entrusted to the discretion of the district court, which 'determines the propriety of a motion to amend by ascertaining the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.'" Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010); See also Foman v. Davis, 371 U.S. 178, 183, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009). Local Rule 15.1, Rules of Practice of the United States District Court for the District of Arizona, directs that "[a] party who moves for leave to amend a pleading . . must attach a copy of the proposed amended pleading . . ., which must indicate in what respect it differs from the pleading which it amends . . . . The proposed amended pleading is not to incorporate by reference any part of the preceding pleading, including exhibits." LRCiv. 15.1. As an initial matter, Plaintiff's proposed amendments fail to comply with this mandate.
The remainder of Plaintiff's Sixth Amended Complaint [Doc. 103] largely reiterates claims previously dismissed by this Court without leave to amend. See Order 2/29/12 [Doc. 88]; Order 6/5/12 [Doc. 101]. The Court again declines the invitation to repeat all of the reasons that these claims fail. Moreover, any "new" claims are wholly conclusory and without any factual basis. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citations omitted) (alterations in original). Plaintiff's latest Complaint is deficient and as such the Court finds his attempt to amend futile.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Amend [Doc. 103] is DENIED. This matter shall remained CLOSED.
__________________
Cindy K. Jorgenson
United States District Judge