Opinion
No. C 11-3018 CW
11-23-2011
JOSEPH McINERNEY, Plaintiff, v. CITY OF SAN JOSE, et al., Defendants.
ORDER DENYING
MOTION TO ALTER OR
AMEND JUDGMENT
On October 19, 2011, the Court issued its Order Granting Application to Proceed In Forma Pauperis, Dismissing Complaint and Denying as Moot Motion for Extension of Time to Serve Defendants. Now, pursuant Federal Rule of Civil Procedure 59(e), Plaintiff moves to alter or amend the judgment.
Because the Court dismissed the complaint without prejudice to re-filing as a paid complaint, a judgment was not issued. However, the legal standard for reconsidering a motion to dismiss is the same as a motion to alter or amend the judgment under Rule 59(e).
Rule 59(e) motions to alter or amend the judgment are interpreted as motions for reconsideration, and "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Rule 59(e) does not allow parties to revisit previously traveled legal terrain. Demasse v. ITT Corp., 915 F. Supp. 1040, 1048 (D. Ariz. 1995).
Plaintiff has not set forth any newly discovered evidence or intervening change in the law. He argues that the Court committed clear error in dismissing his complaint. However, there is no basis for this claim. Therefore, Plaintiff's motion to alter or amend the judgment is denied.
IT IS SO ORDERED.
CLAUDIA WILKEN
United States District Judge