(PC) Petillo v. Jasso ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, CASE No. 1:18-cv-01188-AWI-JLT (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO REOPEN CASE 14 REYNALDO JASSO, et al., (Doc. 14) 15 Defendants. 16 17 Plaintiff has filed a motion to “continue” the case, which the Court construes as a motion 18 to re-open the case. (Doc. 14.) On June 10, 2019, the Court entered an order dismissing the case 19 without prejudice for failure to exhaust administrative remedies, and the Court entered 20 judgment in Defendants’ favor. (Docs. 12, 13.) 21 Plaintiff does not state a rule of procedure, but liberally construing the complaint, the 22 Court will treat the motion as a Rule 60 motion for the relief from a judgment or order. Fed. R. 23 Civ. P. 60(b). Rule 60(b) provides in pertinent part: 24 On motion and just terms, the Court may relieve a party or its legal representative from a 25 final judgment, order, or proceeding for the following reasons: 26 (1) mistake, inadvertence, surprise, or excusable neglect; 27 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 28 1 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 2 (4) the judgment is void; 3 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively 4 is no longer equitable; or 5 (6) any other reason that justifies relief. 6 Fed. R. Civ. P. 60(b)(1)–(6). A motion under subsections (1), (2), and (3) must be filed within 7 one year; motions made under the other subsections must be filed “within a reasonable time.” 8 Fed. R. Civ. P. 60(c)(1). 9 Under the catch-all provision of Rule 60(b)(6), the Court has the power to reopen a 10 judgment even after one year. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 11 U.S. 380, 393 (1993). Subsections (1) through (3) are mutually exclusive of subsection (6), and 12 thus a party asserting “excusable neglect” may not seek relief more than a year after the 13 judgment by relying on subsection (6). Id. (citing Liljeberg v. Health Servs. Acquisition Corp., 14 486 U.S. 847, 863, n.11 (1988)). 15 In this case, Plaintiff filed his motion to re-open over two years after the order directing 16 the Clerk of Court to close this case. (See Doc. 14.) Plaintiff offers no reason for the lengthy 17 delay. Plaintiff has also failed to identify which subsection of Rule 60(b) or any other rule he 18 relies on for relief from the order. Accordingly, the Court DENIES Plaintiff’s motion to reopen 19 this case. (Doc. 14.) 20 IT IS SO ORDERED. 21 22 Dated: August 3, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28