(PS) Pitts v. Pitts ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS REESE PITTS, No. 2:20-cv-01037-TLN-JDP 12 Plaintiff, ORDER 13 v. 14 GEORGE ALBERT PITTS, 15 Defendant. 16 17 18 This matter is before the Court pursuant to Plaintiff Carlos Reese Pitts’s (“Plaintiff”) 19 Motion for Reconsideration of the Court’s August 31, 2020 Order dismissing this case (ECF No. 20 7). (ECF No. 9.) For the reasons set forth below, Plaintiff’s motion is DENIED. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff initiated this action on May 21, 2020. (ECF No. 1.) On July 6, 2020, the 3 previously assigned magistrate judge screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 4 1915(e). (ECF No. 5.) The magistrate judge dismissed the Complaint for lack of subject matter 5 jurisdiction, finding that the Complaint failed to establish the Court’s diversity jurisdiction where 6 the Complaint’s sole claim was for breach of contract. (Id. at 4–5.) Plaintiff was granted thirty 7 days to file an amended complaint to cure the jurisdictional deficiency. (Id.) After Plaintiff 8 failed to timely file an amended complaint, the magistrate judge recommended the case be 9 dismissed without prejudice for the reasons set forth in the July 6, 2020 Order. (ECF No. 6.) 10 Plaintiff did not file any objections to the Findings and Recommendations. On August 31, 2020, 11 the Court adopted the magistrate judge’s finding and recommendations in full, dismissed the 12 action without prejudice, and entered judgment accordingly. (ECF Nos. 7, 8.) Plaintiff has since 13 filed a motion requesting the Court reconsider the August 31, 2020 Order dismissing this case. 14 (ECF No. 9.) 15 II. STANDARD OF LAW 16 The Court may grant reconsideration under either Federal Rule of Civil Procedure 17 (“Rule”) 59(e) or 60(b). See Schroeder v. McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A 18 motion to alter or amend a judgment under Rule 59(e) must be filed no later than 28 days after the 19 entry of judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for reconsideration” is treated as a 20 motion to alter or amend judgment under Rule 59(e) if it is filed within 28 days of entry of 21 judgment; otherwise, it is treated as a Rule 60(b) motion for relief from judgment or order. 22 Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); see Am. Ironworks & Erectors, Inc. v. N. 23 Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). Here, Plaintiff’s motion was filed thirty 24 days after entry of judgment and is therefore construed as a motion for relief from final judgment 25 under Rule 60(b). (See ECF Nos. 8, 9.) 26 Under Rule 60(b), the Court may relieve Plaintiff from a final judgment, order, or 27 proceeding “for any of the following reasons: (1) mistake, inadvertence, surprise, or excusable 28 neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been 1 discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called 2 intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is 3 void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier 4 judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 5 (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). 6 A motion based on Rule 60(b) must be made “within a reasonable time.” Fed. R. Civ. P. 7 60(c)(1). With respect to subsections (1), (2), and (3), the motion must be filed “no more than a 8 year after the entry of judgment or order or the date of the proceeding.” Id. Rule 60(b)(6) goes 9 further, empowering the court to reopen a judgment even after one year has passed. Pioneer Inv. 10 Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993). However, subsections (1) 11 through (3) are mutually exclusive of subsection (6), and thus a party who failed to take timely 12 action due to “excusable neglect” may not seek relief more than a year after the judgment by 13 resorting to subsection (6). Id. (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 14 847, 863, n.11 (1988)). 15 “A motion for reconsideration should not be granted, absent highly unusual 16 circumstances, unless the district court is presented with newly discovered evidence, committed 17 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 18 Inc. v. Mucos Pharma GmbH & Co. (Marlyn), 571 F.3d 873, 880 (9th Cir. 2009). Further, “[a] 19 motion for reconsideration may not be used to raise arguments or present evidence for the first 20 time when they could reasonably have been raised earlier in the litigation.” Id. (emphasis in 21 original). 22 III. ANALYSIS 23 Plaintiff does not provide any facts or argument to satisfy any of the enumerated 24 provisions of Rule 60(b). Plaintiff states that due to the ongoing Covid-19 pandemic, he has had 25 trouble efficiently preparing a complaint. (See ECF No. 9 at 1.) Plaintiff does not, however, 26 explain why he did not seek an extension of time to file an amended complaint or respond to the 27 magistrate judge’s findings and recommendations. More significantly, Plaintiff does not present 28 any newly discovered evidence suggesting this matter was wrongly dismissed, nor does he 1 contend the Court erred in concluding subject matter jurisdiction over his state law claim was 2 lacking. Marlyn, 571 F.3d at 880. Furthermore, the Court finds that, after a de novo review of 3 this case, the order of dismissal is neither manifestly unjust nor clearly erroneous. See Martinez 4 v. Lawless, No. 1:12-cv-01301-LJO-SKO, 2015 WL 5732549, at *1 (E.D. Cal. Sept. 29, 2015) 5 (citing Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), 6 aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987)) (reviewing a 7 magistrate judge’s ruling under the “clearly erroneous or contrary to law” standard set forth under 8 28 U.S.C. § 636(b)(1)(A)). 9 IV. CONCLUSION 10 For the reasons discussed herein, Plaintiff’s Motion for Reconsideration (ECF No. 9) is 11 hereby DENIED. 12 IT IS SO ORDERED. 13 DATED: December 11, 2020 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28