1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BATOR, et al., No. 2:19-cv-00018-TLN-EFB 12 Plaintiffs, 13 v. ORDER 14 KAREN DIXON, et al., 15 Defendants. 16 17 This matter is before the Court pursuant to Plaintiff Anthony Bator’s (“Plaintiff”) “Motion 18 to Set Aside Order Adopting Findings and Recommendations, and Judgement” (ECF No. 25), in 19 which Plaintiff seeks reconsideration of the Order adopting the Findings and Recommendations 20 to dismiss the action and deny Plaintiff’s motion to amend (ECF Nos. 21–22).1 For the reasons 21 set forth below, Plaintiff’s motion is DENIED. 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 Plaintiff initiated this action on January 3, 2019, against Defendants Judge Karen Dixon 24 and Siskiyou County Sheriff Jon Lopez, asserting no specific causes of action but alleging that 25 Defendant Dixon made improper rulings against Plaintiff in a state court action. (ECF No. 1.) 26
27 1 Plaintiff’s motion, which seeks reconsideration of the order “filed on September 27, 2019” (ECF No. 25 at 1), appears to refer to the date the Order was signed by the District Court Judge, 28 rather than the date of electronic filing, September 30, 2019. (See ECF No. 22 at 2.) 1 No factual allegations were asserted against Defendant Lopez. (Id.) On January 28, 2019, 2 Defendant Dixon filed a Motion to Dismiss. (ECF No. 7.) Plaintiff requested and was granted an 3 extension of time to oppose the motion (ECF Nos. 12–13), but ultimately failed to file any 4 opposition. 5 On April 23, 2019, the magistrate judge issued an Order to Show Cause for Plaintiff’s 6 failure to file an opposition or statement of non-opposition. (ECF No. 14.) Instead of opposing 7 the Motion to Dismiss, Plaintiff filed a “Response to Order to Show Cause” (ECF No. 17), and an 8 “Amended Complaint and Motion for Preliminary Injunction” (ECF No. 15), which the Court 9 construed as a motion to amend. 10 On September 4, 2019, the magistrate judge filed Findings and Recommendations 11 recommending dismissal of Plaintiff’s claims due to lack of subject matter jurisdiction, denial of 12 Plaintiff’s motion to amend, and further recommending that the case be closed. (ECF No. 21.) 13 On September 16, 2019, the Findings and Recommendations intended to be served on Plaintiff 14 was returned as “Undeliverable.” On September 30, 2019, this Court adopted the Findings and 15 Recommendations in full, dismissing the action and entering Judgment in favor of Defendants. 16 (ECF Nos. 22–23.) That same day, Plaintiff filed a Notice of Change of Address with the Court. 17 (ECF No. 24.) 18 On October 25, 2019, Plaintiff filed the instant Motion for Reconsideration, on the basis 19 that he was unexpectedly transferred to a different prison in September 2019. (ECF No. 25.) 20 Plaintiff requests the Court reverse its order dismissing the case and allow him adequate time to 21 articulate multiple objections to the proposed Findings and Recommendations. (Id.) The Court 22 DENIES Plaintiff’s motion for the reasons stated herein. 23 II. STANDARDS OF LAW 24 The Court may grant reconsideration under Federal Rules of Civil Procedure 59(e) or 60. 25 See Schroeder v. McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A motion to alter or amend a 26 judgment under Rule 59(e) must be filed no later than twenty-eight days after the entry of 27 judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for reconsideration” is treated as a motion 28 to alter or amend judgment under Rule 59(e) if it is filed within twenty-eight days of entry of 1 judgment; otherwise, it is treated as a Rule 60(b) motion for relief from judgment or order. 2 Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); see Am. Ironworks & Erectors, Inc. v. N. 3 Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). Plaintiff’s motion was filed within 4 twenty-eight days of entry of judgment and is therefore construed as a motion to alter or amend 5 the judgment under Rule 59(e). 6 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the 7 district court enjoys considerable discretion in granting or denying the motion. Allstate Ins. Co. v. 8 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011), citing McDowell v. Calderon, 197 F.3d 1253, 1255 9 n.1 (9th Cir. 1999). Nevertheless, a motion for reconsideration under Rule 59(e) “should not be 10 granted, absent highly unusual circumstances, unless the district court is presented with newly 11 discovered evidence, committed clear error, or if there is an intervening change in the controlling 12 law.” McDowell, 197 F.3d at 1255. Further, “[a] motion for reconsideration may not be used to 13 raise arguments or present evidence for the first time when they could reasonably have been 14 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 15 F.3d 873, 880 (9th Cir. 2009) (emphasis in original). 16 “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: 17 (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment 18 rests; (2) if such motion is necessary to present newly discovered or previously unavailable 19 evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is 20 justified by an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d at 1111. 21 III. ANALYSIS 22 Plaintiff fails to advance any argument that establishes he is entitled to relief under Rule 23 59(e). More specifically, Plaintiff’s motion fails because he alleges neither new evidence nor an 24 intervening change in the controlling law; nor does he identify any errors of law or fact in the 25 judgment. McDowell, 197 F.3d at 1255. Similarly, Plaintiff states he intends to raise numerous 26 objections to the Findings and Recommendations, but he does not identify what those objections 27 are. (ECF No. 25 at 3.) At most, Plaintiff argues he did not receive the Findings and 28 Recommendations, and therefore did not have the opportunity to object to them, because he was 1 unexpectedly transferred to a different prison at the beginning of September 2019. (Id. at 2.) The 2 Court finds this argument unpersuasive. 3 As noted in the Findings and Recommendations, the Court properly attempted to serve 4 Plaintiff with its Findings and Recommendations. Local Rule 182(f) places Plaintiff under a 5 continuing obligation to inform the Court of any change of address. E.D. Cal. L.R. 182(f). 6 Absent such notice, service of the Court’s orders is considered fully effective. Id. Plaintiff knew 7 Defendant’s Motion to Dismiss (ECF No. 7) was submitted without appearance and was pending 8 before the court. Under these circumstances, Plaintiff’s failure to timely update his mailing 9 address in compliance with the Local Rules does not warrant the extraordinary relief he seeks 10 under Rule 59(e). See, e.g., Royal v. Hofer, No. 2:07-cv-00474-GEB-DAD-P, 2009 WL 2424589 11 (E.D. Cal. Aug. 6, 2009) (denying reconsideration of dismissal for failure to comply with court 12 orders, where delay resulted from plaintiff’s failure to update address with court); see also In re 13 Hammer, 940 F.2d 524, 526 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BATOR, et al., No. 2:19-cv-00018-TLN-EFB 12 Plaintiffs, 13 v. ORDER 14 KAREN DIXON, et al., 15 Defendants. 16 17 This matter is before the Court pursuant to Plaintiff Anthony Bator’s (“Plaintiff”) “Motion 18 to Set Aside Order Adopting Findings and Recommendations, and Judgement” (ECF No. 25), in 19 which Plaintiff seeks reconsideration of the Order adopting the Findings and Recommendations 20 to dismiss the action and deny Plaintiff’s motion to amend (ECF Nos. 21–22).1 For the reasons 21 set forth below, Plaintiff’s motion is DENIED. 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 Plaintiff initiated this action on January 3, 2019, against Defendants Judge Karen Dixon 24 and Siskiyou County Sheriff Jon Lopez, asserting no specific causes of action but alleging that 25 Defendant Dixon made improper rulings against Plaintiff in a state court action. (ECF No. 1.) 26
27 1 Plaintiff’s motion, which seeks reconsideration of the order “filed on September 27, 2019” (ECF No. 25 at 1), appears to refer to the date the Order was signed by the District Court Judge, 28 rather than the date of electronic filing, September 30, 2019. (See ECF No. 22 at 2.) 1 No factual allegations were asserted against Defendant Lopez. (Id.) On January 28, 2019, 2 Defendant Dixon filed a Motion to Dismiss. (ECF No. 7.) Plaintiff requested and was granted an 3 extension of time to oppose the motion (ECF Nos. 12–13), but ultimately failed to file any 4 opposition. 5 On April 23, 2019, the magistrate judge issued an Order to Show Cause for Plaintiff’s 6 failure to file an opposition or statement of non-opposition. (ECF No. 14.) Instead of opposing 7 the Motion to Dismiss, Plaintiff filed a “Response to Order to Show Cause” (ECF No. 17), and an 8 “Amended Complaint and Motion for Preliminary Injunction” (ECF No. 15), which the Court 9 construed as a motion to amend. 10 On September 4, 2019, the magistrate judge filed Findings and Recommendations 11 recommending dismissal of Plaintiff’s claims due to lack of subject matter jurisdiction, denial of 12 Plaintiff’s motion to amend, and further recommending that the case be closed. (ECF No. 21.) 13 On September 16, 2019, the Findings and Recommendations intended to be served on Plaintiff 14 was returned as “Undeliverable.” On September 30, 2019, this Court adopted the Findings and 15 Recommendations in full, dismissing the action and entering Judgment in favor of Defendants. 16 (ECF Nos. 22–23.) That same day, Plaintiff filed a Notice of Change of Address with the Court. 17 (ECF No. 24.) 18 On October 25, 2019, Plaintiff filed the instant Motion for Reconsideration, on the basis 19 that he was unexpectedly transferred to a different prison in September 2019. (ECF No. 25.) 20 Plaintiff requests the Court reverse its order dismissing the case and allow him adequate time to 21 articulate multiple objections to the proposed Findings and Recommendations. (Id.) The Court 22 DENIES Plaintiff’s motion for the reasons stated herein. 23 II. STANDARDS OF LAW 24 The Court may grant reconsideration under Federal Rules of Civil Procedure 59(e) or 60. 25 See Schroeder v. McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A motion to alter or amend a 26 judgment under Rule 59(e) must be filed no later than twenty-eight days after the entry of 27 judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for reconsideration” is treated as a motion 28 to alter or amend judgment under Rule 59(e) if it is filed within twenty-eight days of entry of 1 judgment; otherwise, it is treated as a Rule 60(b) motion for relief from judgment or order. 2 Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); see Am. Ironworks & Erectors, Inc. v. N. 3 Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). Plaintiff’s motion was filed within 4 twenty-eight days of entry of judgment and is therefore construed as a motion to alter or amend 5 the judgment under Rule 59(e). 6 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the 7 district court enjoys considerable discretion in granting or denying the motion. Allstate Ins. Co. v. 8 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011), citing McDowell v. Calderon, 197 F.3d 1253, 1255 9 n.1 (9th Cir. 1999). Nevertheless, a motion for reconsideration under Rule 59(e) “should not be 10 granted, absent highly unusual circumstances, unless the district court is presented with newly 11 discovered evidence, committed clear error, or if there is an intervening change in the controlling 12 law.” McDowell, 197 F.3d at 1255. Further, “[a] motion for reconsideration may not be used to 13 raise arguments or present evidence for the first time when they could reasonably have been 14 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 15 F.3d 873, 880 (9th Cir. 2009) (emphasis in original). 16 “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: 17 (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment 18 rests; (2) if such motion is necessary to present newly discovered or previously unavailable 19 evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is 20 justified by an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d at 1111. 21 III. ANALYSIS 22 Plaintiff fails to advance any argument that establishes he is entitled to relief under Rule 23 59(e). More specifically, Plaintiff’s motion fails because he alleges neither new evidence nor an 24 intervening change in the controlling law; nor does he identify any errors of law or fact in the 25 judgment. McDowell, 197 F.3d at 1255. Similarly, Plaintiff states he intends to raise numerous 26 objections to the Findings and Recommendations, but he does not identify what those objections 27 are. (ECF No. 25 at 3.) At most, Plaintiff argues he did not receive the Findings and 28 Recommendations, and therefore did not have the opportunity to object to them, because he was 1 unexpectedly transferred to a different prison at the beginning of September 2019. (Id. at 2.) The 2 Court finds this argument unpersuasive. 3 As noted in the Findings and Recommendations, the Court properly attempted to serve 4 Plaintiff with its Findings and Recommendations. Local Rule 182(f) places Plaintiff under a 5 continuing obligation to inform the Court of any change of address. E.D. Cal. L.R. 182(f). 6 Absent such notice, service of the Court’s orders is considered fully effective. Id. Plaintiff knew 7 Defendant’s Motion to Dismiss (ECF No. 7) was submitted without appearance and was pending 8 before the court. Under these circumstances, Plaintiff’s failure to timely update his mailing 9 address in compliance with the Local Rules does not warrant the extraordinary relief he seeks 10 under Rule 59(e). See, e.g., Royal v. Hofer, No. 2:07-cv-00474-GEB-DAD-P, 2009 WL 2424589 11 (E.D. Cal. Aug. 6, 2009) (denying reconsideration of dismissal for failure to comply with court 12 orders, where delay resulted from plaintiff’s failure to update address with court); see also In re 13 Hammer, 940 F.2d 524, 526 (9th Cir. 1991) (denying motion to set aside default judgment under 14 Rule 60(b), on basis that pro se party was responsible for apprising the court of his forwarding 15 address and received constructive notice of the filing to which he failed to respond). 16 Further, in light of the dismissal of this action for lack of jurisdiction pursuant to the 17 Rooker-Feldman doctrine2 and judicial immunity (see ECF No. 21 at 4–6), the Court is persuaded 18 that the result would be no different if the order was vacated and Plaintiff was permitted 19 additional time to submit his (unidentified) objections. For these reasons, Plaintiff’s Motion for 20 Reconsideration must be DENIED. 21 /// 22
23 2 The Rooker-Feldman doctrine bars jurisdiction in federal district court if the exact claims raised in a state court case are raised in the subsequent federal case, or if the constitutional claims 24 presented to the district court are “inextricably intertwined” with the state court’s denial of relief. Bianchi v. Rylaarsdam, 334 F.3d 895, 898–99 (9th Cir. 2003), quoting D.C. Court of Appeals v. 25 Feldman, 460 U.S. 562, 483 n. 16 (1983). In addition to recommending dismissal of the action under this basis, the Findings and Recommendations also recommended denial of Plaintiff’s 26 Motion to Amend (ECF No. 15), on the basis that Plaintiff’s proposed amendments were futile. 27 (ECF No. 21 at 6, citing Noll v. Carlson, 809 F.2d 1446, 1448 (1987) (holding that, while the court would normally grant a pro se plaintiff a chance to amend his complaint, it will not grant 28 leave to amend where it is clear that no amendment can cure the complaint’s defects).) 1 IV. CONCLUSION 2 Plaintiff has failed to advance any argument or new facts, circumstances, or controlling 3 law to warrant the extraordinary relief he seeks under Rule 59(e). Accordingly, Plaintiff’s 4 Motion for Reconsideration (ECF No. 25) is DENIED. 5 IT IS SO ORDERED. 6 Dated: January 30, 2020 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28