1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 16cv2412-CAB (MSB) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S SECOND MOTION FOR RECONSIDERATION 14 BLAHNIK, [ECF No. 149] 15 Defendant. 16 17 18 On February 14, 2020, this Court issued an “Order Denying Plaintiff’s Motion for 19 Reconsideration.” (ECF No. 147.) On March 2, 2020, Plaintiff filed “Motion: 59(e); or 20 60(b) in regard to ‘Order Denying Plaintiff’s Motion for Reconsideration,’” seeking relief 21 from the Court’s denial of reconsideration. (ECF No. 149.) 22 A. Legal Standard 23 Plaintiff asserts this motion under, alternatively, Federal Rules of Civil Procedure 24 59(e) or 60(b). (See ECF No. 149 at 1.) As this Court noted when ruling on Plaintiff’s 25 previous motion for reconsideration, because “Rule 59(e) ‘clearly contemplates entry of 26 judgment as a predicate to any motion,’” and there has been no entry of judgment in 27 this case, Rule 59(e) is not the proper standard for the instant motion. See, e.g., Balla v. 28 Idaho State Bd. of Corrections, 869 F.2d 461, 466-67 (9th Cir. 1989) (finding an order 1 denying prisoner plaintiffs’ contempt motion and closing all issues except overcrowding 2 to relitigation was not a judgment within the meaning of Rule 59(e)). Therefore, the 3 Court will apply Rule 60(b) to this motion. 4 Federal Rule of Civil Procedure 60(b) provides, in part:
5 On motion and just terms, the court may relieve a party or its legal 6 representative from a final judgment, order or proceeding for the following 7 reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been 8 discovered in time to move for a new trial under Rule 59(b); (3) fraud 9 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment 10 has been satisfied, released, or discharged; it is based on an earlier judgment 11 that has been reversed or vacated; or applying it prospectively is no longer 12 equitable; or (6) any other reason that justifies relief. 13 “Rule 60 provides for extraordinary relief and may be invoked only upon a 14 showing of ‘exceptional circumstances.’” (ECF No. 121 (citing Engleson v. Burlington 15 N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994).) Further, Rule 60(b)(1) is not meant to 16 remedy a party’s mistaken litigation strategy. Latshaw v. Trainer Wortham & Co., 452 17 F.3d 1097, 1101 (9th Cir. 2006) (“We agree that Rule 60(b)(1) is not intended to remedy 18 the effects of a litigation decision that a party later comes to regret through 19 subsequently-gained knowledge that corrects the erroneous legal advice of counsel.”) 20 Because Mr. Arellano is a pro se prisoner, the Court is again mindful of precedent 21 directing lenience in the interpretation of Plaintiff’s pleadings. The pleadings of pro se 22 litigants are held to “less stringent standards than formal pleadings drafted by lawyers.” 23 Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Small v. Horel, 367 F. App’x 759, 761 24 (9th Cir. 2010). This is particularly true in a civil rights case, where “the court must 25 construe the pleadings liberally and afford the plaintiff the benefit of any doubt.” 26 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988); see also Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (The rule of liberal construction is 28 “particularly important in civil rights cases.”). Nevertheless, pro se plaintiffs remain 1 bound by the applicable procedural rules. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 2 1995); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on other grounds by 3 Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012)); Carter v. Comm’r, 784 F.2d 1006, 4 1008-09 (9th Cir. 1986). 5 B. Discussion 6 Here, Plaintiff does not identify on which of the Rule 60(b) grounds he bases his 7 request for relief from the Court’s order denying his motion for reconsideration of the 8 Court’s denial of his motion to compel discovery. Nor does he present a basis for doing 9 so. Plaintiff’s arguments are essentially that (1) Plaintiff’s failure to mention in his 10 Motion to Compel [ECF No. 123] or Reply [ECF No. 132] that he allegedly filed motions 11 to compel on the request for production in May and July of 2019 was excusable since he 12 did not think those earlier motions were relevant, (ECF No. 149 at 3-5); and (2) that 13 Plaintiff’s delay bringing the motion to compel was excused because he could not bring 14 the motion to compel without a copy of ECF No. 96 to verify that he had asked 15 Defendant for documents, and the Court had not responded to his requests for ECF No. 16 96, (id. at 5-6). 17 Plaintiff’s first argument, reiterating why he did not mention his alleged May and 18 July 2019 Motions to Compel, is similar to the argument he raised in his first motion for 19 reconsideration, which this Court has already rejected. (See ECF No. 147 at 5.) Plaintiff 20 has presented no new evidence in support of this position. As this Court has previously 21 stated, Plaintiff was on notice that the timeliness of his motion was at-issue and that he 22 needed to address the entire delay leading up to his Motion to Compel. (Id.) Plaintiff’s 23 detailed and shifting explanations for why he didn’t address the entire period of delay 24 are not persuasive. The Court further notes that none of the earlier motions to compel 25 that Plaintiff vaguely claimed that he “must of written” and sent to the Court for the 26 first time in his first Motion for Reconsideration appear on the docket. (See ECF No. 143 27 at 2 (claiming to have sent motions in May and July 2019); docket (lacking any entries 28 for Plaintiff’s earlier motions to compel).) No evidence has been submitted to 1 corroborate Plaintiff’s untimely self-serving statements, such as a mail log showing that 2 Plaintiff sent the motions he claims to have sent. Under the circumstances, the Court 3 has a difficult time being persuaded that the earlier motions were in fact sent to the 4 Court. 5 Plaintiff’s second argument, that he needed a copy of ECF No. 96 from the Court 6 so that he could properly serve Defendant, and that his motion to compel deadline did 7 not accrue since he had not resent ECF No. 96 to Defendant is also unavailing. (See ECF 8 No. 149 at 5 (“Based on the above [it] is evident that as to my knowledge Defendant had 9 not been properly served with 2nd motion for request of documents [a]nd I couldn’t 10 serve[] her until I g[o]t from Court a copy of ECF 96 so I can verify it is the document of 11 ‘Request for Documents,’ and serve Defendant with it. Only then if Defendant fail[ed] 12 to respon[d] I could adequately file Motion to Compel.”).) Firstly, Plaintiff claims that he 13 has not yet received a copy of ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 16cv2412-CAB (MSB) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S SECOND MOTION FOR RECONSIDERATION 14 BLAHNIK, [ECF No. 149] 15 Defendant. 16 17 18 On February 14, 2020, this Court issued an “Order Denying Plaintiff’s Motion for 19 Reconsideration.” (ECF No. 147.) On March 2, 2020, Plaintiff filed “Motion: 59(e); or 20 60(b) in regard to ‘Order Denying Plaintiff’s Motion for Reconsideration,’” seeking relief 21 from the Court’s denial of reconsideration. (ECF No. 149.) 22 A. Legal Standard 23 Plaintiff asserts this motion under, alternatively, Federal Rules of Civil Procedure 24 59(e) or 60(b). (See ECF No. 149 at 1.) As this Court noted when ruling on Plaintiff’s 25 previous motion for reconsideration, because “Rule 59(e) ‘clearly contemplates entry of 26 judgment as a predicate to any motion,’” and there has been no entry of judgment in 27 this case, Rule 59(e) is not the proper standard for the instant motion. See, e.g., Balla v. 28 Idaho State Bd. of Corrections, 869 F.2d 461, 466-67 (9th Cir. 1989) (finding an order 1 denying prisoner plaintiffs’ contempt motion and closing all issues except overcrowding 2 to relitigation was not a judgment within the meaning of Rule 59(e)). Therefore, the 3 Court will apply Rule 60(b) to this motion. 4 Federal Rule of Civil Procedure 60(b) provides, in part:
5 On motion and just terms, the court may relieve a party or its legal 6 representative from a final judgment, order or proceeding for the following 7 reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been 8 discovered in time to move for a new trial under Rule 59(b); (3) fraud 9 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment 10 has been satisfied, released, or discharged; it is based on an earlier judgment 11 that has been reversed or vacated; or applying it prospectively is no longer 12 equitable; or (6) any other reason that justifies relief. 13 “Rule 60 provides for extraordinary relief and may be invoked only upon a 14 showing of ‘exceptional circumstances.’” (ECF No. 121 (citing Engleson v. Burlington 15 N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994).) Further, Rule 60(b)(1) is not meant to 16 remedy a party’s mistaken litigation strategy. Latshaw v. Trainer Wortham & Co., 452 17 F.3d 1097, 1101 (9th Cir. 2006) (“We agree that Rule 60(b)(1) is not intended to remedy 18 the effects of a litigation decision that a party later comes to regret through 19 subsequently-gained knowledge that corrects the erroneous legal advice of counsel.”) 20 Because Mr. Arellano is a pro se prisoner, the Court is again mindful of precedent 21 directing lenience in the interpretation of Plaintiff’s pleadings. The pleadings of pro se 22 litigants are held to “less stringent standards than formal pleadings drafted by lawyers.” 23 Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Small v. Horel, 367 F. App’x 759, 761 24 (9th Cir. 2010). This is particularly true in a civil rights case, where “the court must 25 construe the pleadings liberally and afford the plaintiff the benefit of any doubt.” 26 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988); see also Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (The rule of liberal construction is 28 “particularly important in civil rights cases.”). Nevertheless, pro se plaintiffs remain 1 bound by the applicable procedural rules. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 2 1995); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on other grounds by 3 Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012)); Carter v. Comm’r, 784 F.2d 1006, 4 1008-09 (9th Cir. 1986). 5 B. Discussion 6 Here, Plaintiff does not identify on which of the Rule 60(b) grounds he bases his 7 request for relief from the Court’s order denying his motion for reconsideration of the 8 Court’s denial of his motion to compel discovery. Nor does he present a basis for doing 9 so. Plaintiff’s arguments are essentially that (1) Plaintiff’s failure to mention in his 10 Motion to Compel [ECF No. 123] or Reply [ECF No. 132] that he allegedly filed motions 11 to compel on the request for production in May and July of 2019 was excusable since he 12 did not think those earlier motions were relevant, (ECF No. 149 at 3-5); and (2) that 13 Plaintiff’s delay bringing the motion to compel was excused because he could not bring 14 the motion to compel without a copy of ECF No. 96 to verify that he had asked 15 Defendant for documents, and the Court had not responded to his requests for ECF No. 16 96, (id. at 5-6). 17 Plaintiff’s first argument, reiterating why he did not mention his alleged May and 18 July 2019 Motions to Compel, is similar to the argument he raised in his first motion for 19 reconsideration, which this Court has already rejected. (See ECF No. 147 at 5.) Plaintiff 20 has presented no new evidence in support of this position. As this Court has previously 21 stated, Plaintiff was on notice that the timeliness of his motion was at-issue and that he 22 needed to address the entire delay leading up to his Motion to Compel. (Id.) Plaintiff’s 23 detailed and shifting explanations for why he didn’t address the entire period of delay 24 are not persuasive. The Court further notes that none of the earlier motions to compel 25 that Plaintiff vaguely claimed that he “must of written” and sent to the Court for the 26 first time in his first Motion for Reconsideration appear on the docket. (See ECF No. 143 27 at 2 (claiming to have sent motions in May and July 2019); docket (lacking any entries 28 for Plaintiff’s earlier motions to compel).) No evidence has been submitted to 1 corroborate Plaintiff’s untimely self-serving statements, such as a mail log showing that 2 Plaintiff sent the motions he claims to have sent. Under the circumstances, the Court 3 has a difficult time being persuaded that the earlier motions were in fact sent to the 4 Court. 5 Plaintiff’s second argument, that he needed a copy of ECF No. 96 from the Court 6 so that he could properly serve Defendant, and that his motion to compel deadline did 7 not accrue since he had not resent ECF No. 96 to Defendant is also unavailing. (See ECF 8 No. 149 at 5 (“Based on the above [it] is evident that as to my knowledge Defendant had 9 not been properly served with 2nd motion for request of documents [a]nd I couldn’t 10 serve[] her until I g[o]t from Court a copy of ECF 96 so I can verify it is the document of 11 ‘Request for Documents,’ and serve Defendant with it. Only then if Defendant fail[ed] 12 to respon[d] I could adequately file Motion to Compel.”).) Firstly, Plaintiff claims that he 13 has not yet received a copy of ECF No. 96, noting that he continued to request a copy in 14 his Motion to Compel in September 2019.1 (Id. at 5.) That Plaintiff ultimately filed his 15 Motion to Compel when he claims he had never received ECF No. 96 and was still 16 requesting a copy, (see ECF No. 123 at 1), makes clear that he never needed the 17 document to pursue his Motion to Compel. Second, Plaintiff states that Defendant first 18 denied that ECF No. 96 was a motion for production of documents on January 10, 2019. 19 If Plaintiff was of the belief that Defendant had not been properly served with the 20 request for production at-issue, all Plaintiff needed to do was serve another timely 21 request for production. If Plaintiff disagreed, he ought to have pursued a motion to 22 compel. There was no reason for Plaintiff to be beholden to ECF No. 96, or to stall 23 discovery for many months while purportedly awaiting a copy. 24 25
26 27 1 The Court notes that in response to Plaintiff’s motions, it ordered the Clerk to send copies of ECF No. 96 on March 4, 2019 and October 15, 2019 (ECF No. 104 at 2; ECF No. 124.) Plaintiff makes no mention 28 1 Finally, Plaintiff's assertion that he could wait indefinitely to re-serve ECF No. 96, 2 then file a motion to compel if Defendant failed to respond, completely ignores the 3 || fact that discovery closed in this case on March 22, 2019. (ECF No. 81 at 3.) The 4 ||importance of the discovery deadlines was underscored in this case by the Defendant’s 5 || many motions to modify discovery deadlines premised on Plaintiff’s refusal to 6 || participate in discovery for various reasons, which was also the subject of a Motion to 7 || Dismiss by Defendant. (See, e.g., ECF Nos. 67, 97, 109, 126.) Additionally, Plaintiff has 8 || himself previously filed numerous motions to extend discovery deadlines in this case, 9 demonstrating his awareness of the same. (See, e.g., ECF No. 51, 55, 58, 61, 76, 78.) 10 || Nothing changed in this case to permit Plaintiff to disregard discovery cut-off by nearly 11 months. 12 For these reasons, the Court DENIES Plaintiff’s Second Motion for 13 || Reconsideration. 14 I. CONCLUSION 15 For the reasons stated above, Plaintiff's motion for reconsideration is DENIED. 16 IT IS SO ORDERED. 17 ||Dated: April 10, 2020 18 = _2 30 Honorable Michael S. Berg United States Magistrate Judge 21 22 23 24 25 26 27 28