(PS)Jones v. Tredinnick

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LLOYD DYLAN JONES, No. 2:19-cv-01814 JAM AC 12 Plaintiff, 13 v. ORDER 14 DERIK TREDINNICK, et al., 15 Defendants. 16 17 This matter is before the court on plaintiff’s motion (ECF No. 33) that the undersigned 18 reconsider the pendingrecommendation that this case be dismissed without prejudice for failure 19 to prosecute(ECF No. 32). 20 This is the second time that dismissal for failure to prosecute has been recommended, and 21 that plaintiff has sought to rewind the clock so that he could continue to pursue the case. On 22 August 18, 2020, after plaintiff failed to oppose defendants’ motion to dismiss, the undersigned 23 ordered plaintiff to show cause why the case should not be dismissed for failure to prosecute. 24 ECF No. 24. Plaintiff failed to respond to the OSC, and the undersigned accordingly 25 recommended dismissal on September 2, 2020. ECF No. 28. On September 18, 2020, plaintiff 26 filed a belated response to the OSC, explaining that problems within the prison had prevented his 27 receipt of the motion to dismiss, and that his subsequent release from prison had prevented his 28 timely receipt of the OSC. ECF No. 29. The docket reflects that plaintiff had not previously 1 notified the court of his release or submitted achange of address. Nonetheless, in light of 2 plaintiff’s lack of notice of the motion and OSC, the undersigned vacated the Findings and 3 Recommendations and reinstated the motion to dismiss. ECF No. 30. 4 When plaintiff again failed to timely oppose the motion, the undersigned again 5 recommended dismissal for failure to prosecute. ECF No. 32. Plaintiff now seeks withdrawal of 6 the recommendation. ECF No. 33. 7 The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 8 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 9 1992). “A party seeking reconsideration must show more than a disagreement with the Court’s 10 decision, and recapitulation of the cases and arguments considered by the court before rendering 11 its original decision fails to carry the moving party’s burden.” U.S. v. Westlands Water Dist., 134 12 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). Motions to reconsider are committed to the discretion 13 of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. 14 Watt, 722 F.2d 456, 460 (9th Cir. 1983). To succeed, a party must set forth facts or law of a 15 strongly convincing nature to induce the court to reverse its prior decision. SeeKern-Tulare 16 Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and 17 reversed in part on other grounds 828 F.2d 514 (9th Cir. 1987). When filing a motion for 18 reconsideration, Local Rule 230(j) requires a party to show the “new or different facts or 19 circumstances claimed to exist which did not exist or were not shown upon such prior motion, or 20 what other grounds exist for the motion.” The moving party must also show “why the [new] facts 21 or circumstances were not shown at the time of the prior motion.” Id. 22 Other than its caption, plaintiff’s present motion for reconsideration is a verbatim 23 reproduction of his September 2020 filing explaining his initial failure to oppose the motion to 24 dismiss. CompareECF No. 29 (response to order to show cause) withECF No. 33 (motion for 25 reconsideration). The facts presented address the challenges that plaintiff faced through mid- 26 September. These facts were the basis for the court’s previous decision to vacate the first 27 recommendation for dismissal. Plaintiff has provided no additional facts regarding his failure to 28 respond after the court reinstated the motion and set a new deadline for his opposition. Because 1 || the motion for reconsideration presents no “new or different facts or circumstances,” it must be 2 || denied. 3 Plaintiff is reminded that the recommendation for dismissal will be considered and ruled 4 | on by the district judge. Plaintiff should direct his objections to the district judge. His objections 5 || should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Local 6 || Rule 304(d). The undersigned will extend the deadline for objections. 7 For the reasons stated above, it is HEREBY ORDERED as follows: 8 1. The motion to reconsider, ECF No. 33, is DENIED; 9 2. The deadline for objections to the pending Findings and Recommendations, ECF No. 10 32, is extended to November 23, 2020. 11 12 | Dated: October 23, 2020 : A, ~ CMtwn—ane IS ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28