Opinion
CASE NUMBER: CV 2:08-00408 LEK
01-05-2012
Carroll v. Adevara, et al.,
MINUTES
ATTYS FOR PLA:
ATTYS FOR DEFT:
INTERPRETER:
JUDGE: Leslie E. Kobayashi
REPORTER: COURT ACTION: EO: COURT ORDER DENYING PLAINTIFF'S MOTION FILED DECEMBER 15, 2011
On November 28, 2011, pro se Plaintiff Vernon D. Carroll ("Plaintiff") filed a motion seeking to compel a response to this Court's November 9, 2011 Order Regarding Service [dkt. no. 62] and seeking the imposition of default judgment ("11/28/11 Motion") because the United States Marshal did not respond to the Order Regarding Service by the November 22, 2011 deadline. [Dkt. no. 63.]
On December 6, 2011, this Court issued an entering order denying the 11/28/11 Motion without prejudice ("12/6/11 EO"). [Dkt. no. 64.] The 12/6/11 EO denied the 11/28/11 Motion because the United States Marshals Service for the Eastern District of California ("Sacramento Marshals Service") sent the Court a letter responding to the Order Regarding Service on December 2, 2011 ("12/2/11 Letter").
On December 15, 2011, Plaintiff filed a motion entitled "Motion For: SECOND REVIEW Time Limitation under Default and to Proof Reading the Respondants on Dec 2. 2011 from the U.S. Marshals ~and~ Motion For: Consider a Fareness Judgment within Your Orders Civil Rule 23 (Fed)" ("12/15/11 Motion"). [Dkt. no. 65.] The Court construes the 12/15/11 Motion as a motion for reconsideration of the 12/6/11 EO. Plaintiff argues that the Court should reconsider the 12/6/11 EO and impose sanctions because the Sacramento Marshals Service's 12/2/11 Letter was not a timely response to the Order Regarding Service, and the Order Regarding Service stated that the failure to comply with the order may result in sanctions.
Local Rule 230(j) applies to motions for reconsideration filed within the Eastern District of California. It requires that the party seeking reconsideration state in an affidavit or brief:
the material facts and circumstances surrounding each motion for which reconsideration is sought, including:Plaintiff's 12/15/11 Motion does not set forth any new or different facts or circumstances, nor does it set forth any other grounds that would warrant reconsideration of the 12/6/11 EO.
(3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and
(4) why the facts or circumstances were not shown at the time of the prior motion.
The Order Regarding Service stated that the failure to comply "may result in the imposition of sanctions." [Order Regarding Service at 4 (underline emphasis added).] The imposition of sanctions was therefore discretionary, and this Court decided, in its direction, not to impose sanctions on the Marshals Service, even though the 12/2/11 Letter was not a timely response to the Order Regarding Service. Plaintiff has not presented any basis for this Court to reconsider that ruling.
The Court also notes that, since the filing of the 12/6/11 EO, the Sacramento Marshals Service has attempted service at one of the addresses specified in the Order Regarding Service and certified that Sampath Suryadevara could not be found, [dkt. no. 66,] and the United States Marshals Service in Los Angeles ("L.A. Marshals Service") has apparently completed service at the other address specified in the Order Regarding Service. The L.A. Marshals Service emailed a scanned copy of the Process Receipt and Return to the Sacramento Marshals Service. The Sacramento Marshals Service has orally informed this Court that it will file the document when it receives the original from the L.A. Marshals Service. This Court has attached a facsimile transmission from the Sacramento Marshals Service as Exhibit A.
The Court ORDERS the Sacramento Marshals Service to obtain the original Process Receipt and Return from the L.A. Marshals Service and file it by no later than January 20, 2012. The Court CAUTIONS the Sacramento Marshals Service that the failure to comply with this order may result in the imposition of sanctions.
Plaintiff's 12/15/11 Motion is therefore DENIED.
IT IS SO ORDERED. Submitted by: Warren N. Nakamura, Courtroom Manager