Patel v. Alphabet Inc. ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 RAJ PATEL, Case No. 23-cv-03647-BLF 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. RECONSIDERATION 10 ALPHABET INC., et al., [Re: ECF No. 17] 11 Defendants. 12 13 On August 7, 2023, Plaintiff filed a “Motion to Reconsider in Part for Dkt. 16.” ECF No. 14 17 (“Mot.”). Docket 16 refers to the Court’s Order granting Plaintiff’s application to proceed in 15 forma pauperis and screening the First Amended Complaint (“FAC”). See ECF No. 16 (“Order”). 16 The Court dismissed the FAC with leave to amend. Id. 17 Under the Civil Local Rules for the Northern District of California, a party needs leave of 18 Court to file a motion for reconsideration. See Civ. L.R. 7-9(a). The Court will treat this motion 19 as a motion for leave to file a motion for reconsideration. 20 Under the Civil Local Rules, a party moving for leave to file a motion for reconsideration 21 must show reasonable diligence and one of the following three conditions: 22 (1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before 23 entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence 24 the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or 25 (2) The emergence of new material facts or a change of law occurring 26 after the time of such order; or 27 (3) A manifest failure by the Court to consider material facts or 1 Civ. L.R. 7-9(b). 2 None of these conditions is met here. The Court therefore declines to grant Plaintiff leave 3 to file a motion to reconsider the Court’s Order dismissing the FAC. Plaintiff asks the Court to 4 “reconsider its decision to dismiss the case with prejudice.” Mot. at 3. But the Court did no such 5 thing; in fact, the prior Order explicitly gave Plaintiff leave to amend. See ECF No. 16. Plaintiff 6 also asks the Court to either “allow the First Amended Complaint or recently filed Second 7 Amended Complaint.” Mot. at 1. Plaintiff does not need to ask the Court to reconsider its Order 8 to allow him to file a Second Amended Complaint, as the Order granted him leave to amend. See 9 ECF No. 16. 10 Plaintiff asks the Court to appoint court-ordered counsel or to order opposing counsel to 11 work with Plaintiff in drafting a Complaint. Mot. at 6. The latter request is completely 12 inappropriate. As to the first, the Court notes that the decision of whether to appoint counsel is 13 within the district court’s discretion, and the Court may appoint counsel under section 1915 “only 14 under ‘exceptional circumstances.’” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A 15 finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success on 16 the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity 17 of the legal issues involved.’ Neither of these factors is dispositive and both must be viewed 18 together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 19 (9th Cir.1986)). Here, the Court finds that Plaintiff has an exceedingly low likelihood of success 20 on the merits. Further, the Court finds that the issues are not particularly complex, and Petitioner 21 has demonstrated an ability to articulate his claims. Therefore, the Court exercises its discretion to 22 decline to appoint counsel. 23 Plaintiff next asks the Court to “show cause and issue a more definitive statement of the 24 facts or construct necessary for each noticed claim.” Mot. at 6. It is not the role of the Court to 25 inform Plaintiff how to draft his pleadings. And finally, Plaintiff asks the Court, in the alternative, 26 to “allow [him] the remainder of time to file another amended complaint.” Id. The Court gathers 27 that this request is in the alternative to allowing the filing of the SAC, which was filed soon after 1 explicitly allowed the filing of aSAC. See ECF No. 16. The Court will treat the SAC, see ECF 2 || No. 18, as the operative pleading; Plaintiff may not file another amended complaint. 3 The Court DENIES Plaintiff’s motion for reconsideration, which the Court treated as a 4 || motion for leave to file a motion for reconsideration. The Court will screen the SAC pursuant to 5 28 U.S.C. § 1915 in a separate order. 6 IT IS SO ORDERED. 7 8 Dated: August 7, 2023 ° BETH LABSON FREEMAN 10 United States District Judge 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28