Smith v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 22cv0798 DMS (BGS) MICHAEL SMITH, 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO ALTER, AMEND, VACATE 14 UNITED STATES, 15 Defendant. 16 17 18 This case comes before the Court on Plaintiff’s motion to alter, amend, or vacate the 19 judgment of dismissal entered in this case on November 4, 2022. Plaintiff cites Federal 20 Rules of Civil Procedure 50, 52, and 59 as the bases for his motion, but because the 21 judgment was entered on a motion to dismiss, the Court will consider the motion under 22 Rule 59 only.1 23 “[A] Rule 59(e) motion is an ‘extraordinary remedy, to be used sparingly in the 24 interests of finality and conservation of judicial resources.’” Wood v. Ryan, 759 F.3d 1117, 25 26 27 1 Rule 50 applies after “a party has been fully heard on an issue during a jury trial[,]” Fed. R. Civ. P. 50(a)(1), and Rule 52 applies after an action has been “tried on the facts without 28 1 1121 (9th Cir. 2014) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 2 (9th Cir. 2000)). “A district court may grant a Rule 59(e) motion if it ‘is presented with 3 newly discovered evidence, committed clear error, or if there is an intervening change in 4 the controlling law.’” Id. (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 5 1999) (en banc)) (quotation marks omitted). Plaintiff has not made a showing that any of 6 those requirements are met here. In particular, Plaintiff has not shown that this Court, 7 which has no connection to Plaintiff’s underlying criminal case or any of the other cases 8 Plaintiff has filed in the Eastern District of Kentucky or the Sixth Circuit, is the proper 9 venue for Plaintiff’s Rule 60(d) motion. 10 In cases such as this, where the plaintiff asks one district court to review the decision 11 of another district court, the Ninth Circuit has held “that considerations of comity and 12 orderly administration of justice demand that the nonrendering court should decline 13 jurisdiction of such an action and remand the parties for their relief to the rendering court, 14 so long as it is apparent that a remedy is available there.” Lapin v. Shulton, Inc., 333 F.2d 15 169, 172 (9th Cir. 1964). See also Treadaway v. Academy of Motion Picture Arts and 16 Sciences, 783 F.2d 1418, 1420-22 (9th Cir. 1986) (discussing Lapin). Plaintiff here has not 17 shown that he is without a remedy in the rendering court, i.e., the United States District 18 Court for the Eastern District of Kentucky. On the contrary, the records from that court 19 reflect that Plaintiff has had ample time and opportunity to seek a remedy from that court, 20 and that he has, in fact, attempted to do so. (See Order Granting Motion to Dismiss at 2, 21 ECF No. 10) (setting out Plaintiff’s numerous filings in the Eastern District of Kentucky 22 and the Sixth Circuit). That those attempts were ultimately unsuccessful does not render 23 the remedy unavailable. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Plaintiff has not met the requirements for relief under Rule 59. Therefore, his motion 2 || to alter, amend, or vacate the judgment is denied. 3 IT IS SO ORDERED. 4 ||Dated: December 20, 2022 em Dh 5 an Yn. Hon. Dana M. Sabraw, Chief Judge 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28