Opinion
3:08-CV-00496-BES-RAM.
March 26, 2009
ORDER
Presently before this Court is pro se Plaintiff Linwood Edward Tracy Jr.'s ("Tracy") "Premature Motion to Dismiss" (#65) filed February 13, 2009. Also before the Court is another document titled "Premature Motion to Dismiss" (#66) filed February 13, 2009. Also before the Court is Tracy's "Motion to Enter U.S. Court District Judge Brian E. Sandoval 1/15/2009 Hearing" (#69) filed February 23, 2009.
Additionally, on March 4, 2009, the Court issued Tracy a Notice of Intent to Dismiss Defendants Jim Gibbins [sic] as well as the Churchill Country District Attorney [sic] Office (#70) for failure to provide the Court with proof of service within 120 days. Tracy responded to this Notice by filing a document titled "Motion to Provide Federal Court with Service by Mail as Ordered in [sic] Behalf of Governor Jim Gibbins [sic] and Churchill County District Attorney [sic] Office" (#72) on March 12, 2009.
I. BACKGROUND
The facts of this case have been set forth at length in the Court's January 20, 2009 Order (#63). Tracy filed this action on September 15, 2008, and amended his complaint on October 16, 2008. On January 20, 2009, the Court issued an order granting several defendants' motions to dismiss on all of Tracy's asserted claims. However, even though nearly all defendants have been dismissed from the action, Tracy continues to file motions addressing defendants who are no longer a part of the case. Upon review of these most recent filings, the Court concludes that they are each motions for reconsideration of the Court's January 20, 2009 Order (#63) and will analyze them as such. Furthermore, the Court will consider Tracy's recent attempts to provide the Court with proof of service regarding the two remaining defendants, Governor Jim Gibbons ("Gibbons") and the Churchill County District Attorney's Office ("CCDA").II. ANALYSIS
A. Motions for Reconsideration
Fed.R.Civ.P. 59(e) provides an opportunity for a district court to reconsider and amend its previous order if the court: "(1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) there is an intervening change in controlling law." Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003) (citation omitted). However, reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." See Van Asdale v. Int'l Game Tech., 498 F. Supp.2d 1321, 1335-36 (D.Nev. 2007) (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)); see also 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) ("Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances . . ."). A Rule 59(e) motion may not be used to raise new arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. See Carroll, 342 F.3d at 945. Under Rule 59(e), any motion to alter or amend a judgment shall be filed no later than 10 days after the entry of judgment.
The Court first notes that these motions are untimely. Documents #65 and #66 were both filed on February 13, 2009, and Document (#69) was filed on February 23, 2009, more than 10 days after the Court issued its order on January 20, 2009. Therefore, these motions for reconsideration can be denied on these grounds.
Even considering these motions on their merits, it is clear that they are groundless. Tracy does not allege the existence of newly discovered evidence or an intervening change in the controlling law. While the arguments in these motions are not entirely coherent, it appears that Tracy is moving for reconsideration based on his belief that the Court committed clear error. First, Tracy argues that he had severe chest pain after the hearing held in this case on January 15, 2009. (Tracy's Mot. (#69) 1). While it is unfortunate that Tracy experienced a health scare after the January 15, 2009 hearing, this is not relevant to the determination of whether the Court committed clear error.
Second, Tracy makes several conclusory statements that the Court was without judicial authority to enter judgment in this case, and argues that because he filed a notice of appeal to the Ninth Circuit, this Court had no authority to hold a hearing on the motions to dismiss. Id. at 3. However, Tracy fails to consider that his November 7, 2008 appeal was dismissed by the Ninth Circuit Court of Appeals for lack of jurisdiction because the order challenged was not final or appealable. See (Order (#68) 1). This Court did have proper jurisdiction both to hold a hearing and enter judgment dismissing this case on January 20, 2009. Even giving these motions a liberal construction for a pro se litigant, the Court concludes that Tracy has failed to show that the Court committed clear error or that its decision was manifestly unjust. As such, the Court will deny all of Tracy's motions.
B. Service of Remaining Defendants
The only defendants remaining in this action are Gibbons and CCDA. As discussed in the foregoing, the Court issued Tracy a Notice of Intent to Dismiss Gibbons and the CCDA on March 4, 2009 stating that the action would be dismissed without prejudice unless Tracy filed proof of service of these parties, or showed good cause why service had not been made. (Notice (#70) 1). In response, Tracy filed a document with the Court in which he alleges that Gibbons and CCDA were properly served. (Tracy's Mot. (#72) 14-16).
Fed.R.Civ.P. 4(m) provides that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . shall dismiss the action without prejudice as to that defendant." If the court determines that service was defective, Rule 4(m) requires a two-step analysis in deciding whether or not to extend the prescribed time period for service of the complaint. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). First, upon a showing of good cause for the defective service, the court must extend the time period. Id. Second, if there is no good cause, the court has the discretion to dismiss without prejudice or to extend the time period. Id.
Tracy claims he properly served Gibbons and CCDA in his Motion. (Tracy's Mot. (#72) 14-16). However, the documents Tracy provides to the Court do not show that the complaint itself was ever properly served upon either Gibbons or CCDA. He provides several affidavits from Robin Pecchenino, who states that he mailed a document titled "Amendment Default Judgment for Non Response" to the Attorney General's office as well as to the CCDA. (Tracy's Mot. (#72) 14-17). This document does not show the Court that Tracy or Mr. Pecchenino served the complaint on either defendant in a manner prescribed by Fed.R.Civ.P. 4 or Nev.R.Civ.P. 4. Furthermore, Tracy offers no justification for his failure to comply with these rules. Therefore the Court may, in its discretion, dismiss Tracy's claims against Gibbons and the CCDA or grant leave to properly effectuate service. Given that there are deficiencies in Tracy's pleadings that cannot be cured by granting additional time to properly serve these defendants, the Court, in its discretion, will not extend the time for Tracy to effectuate proper service. Accordingly, Defendants Gibbons and CCDA are dismissed from this action without prejudice.
IV. CONCLUSION
Based on the foregoing, IT IS ORDERED that Tracy's Premature Motion to Dismiss (#65) is DENIED.
IT IS FURTHER ORDERED that Tracy's Premature Motion to Dismiss (#66) is DENIED.
IT IS FURTHER ORDERED that Tracy's Motion to Enter U.S. Court District Judge Brian E. Sandoval 1/15/2009 Hearing (#69) is DENIED.
IT IS FURTHER ORDERED that Defendants Jim Gibbons and the Clark County District Attorneys Office are DISMISSED from this action without prejudice.
The Clerk of the Court shall enter judgment accordingly.
The Clerk of the Court shall not accept any further filings in this action.