Opinion
No. C 06-4087 SBA.
November 20, 2008
ORDER [Docket No. 15]
This matter comes before the Court on Plaintiff Selomi M. Villalta's ("Plaintiff") Motion for Permission to File a Motion for Reconsideration. Having read and considered the papers presented by plaintiff, the Court hereby DENIES the Motion [Docket No. 15].
Background
On June 30, 2006, plaintiff filed a complaint [Docket No. 1] and a Motion for Leave to Proceed in forma pauperis [Docket No. 3]. On August 9, 2006, this Court denied plaintiff's Motion for Leave to Proceed in forma pauperis and dismissed the complaint for failure to state a claim [Docket No. 4]. On June 29, 2008, plaintiff filed an amended complaint [Docket No. 7].
On June 10, 2008, the Court issued an Order to Show Cause why the complaint should not be dismissed for failure to prosecute. [Docket No. 9]. As of June 29, 2008, no defendant had been served pursuant to Rule 4 of the Federal Rules of Civil Procedure. See Order to Show Cause. A hearing was set for July 9, 2008 at 4:00 p.m., and held. The plaintiff did not appear but plaintiff's daughter, Yolanda Martinez, appeared in court and advised the court that Plaintiff had been deported. The Court thanked Ms. Martinez for advising the court of his deportation and ordered the case dismissed. The Court also advised Ms. Martinez that she could not file documents on her father's behalf nor could she appear for him because she is not a licensed attorney. [Minutes Entry, Show Cause Hearing, Docket No. 11].
The order dismissing the case for failure to prosecute issued on September 30, 2008. [Docket No. 14]. On October 21, 2008, Plaintiff filed this motion for reconsideration of the dismissal order.
Legal Standard
Under Civil Local Rule 7-9(b), before leave to file a motion for reconsideration is granted, the moving party must specifically show:
(1) that at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.
Local Rule of Civil Procedure 7-9 permits reconsideration of an order if there has been a change in a material fact or law since the time the original motion was made.
Analysis
Plaintiff contends he served defendant on October 21, 2008 and defendant has failed to appear and answer. In theory, the purported service qualifies as a change in material fact. However, the Court cannot consider the purported service as grounds for reconsidering its dismissal of the case. First, the "Certificate of Service" attached to the motion is insufficient to establish proof of service. It is not made under penalty of perjury, fails to identify the person signing the certificate, and states that "the attached" was placed in a pre-paid envelope and mailed to Emilia Bardine. Service by mail does not comply with Fed.R.Civ.P. 4(e) and (i). And service without a summons and a copy of the complaint is insufficient under Fed.R.Civ.P. 4(c)(1).
Because there is no change in material fact, there is no basis for granting the Plaintiff's motion.
CONCLUSION
For the foregoing reason, the Court DENIES the Motion for Permission to File a Motion for Reconsideration.
IT IS SO ORDERED.