Cleaferse McCowen v. Department of Veterans Affairs ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CLEAFERSE MCCOWEN, Case No.: 20cv2498-CAB-BLM 11 Plaintiff, ORDER DENYING MOTION FOR 12 v. RECONSIDERATION/RELIEF FROM JUDGMENT [Doc. No. 21] 13 DEPARTMENT OF VETERANS AFFAIRS, a government agency, and ELI 14 SISNEROS, in his employment and 15 individual capacities, 16 Defendants. 17 18 On February 26, 2021, this Court issued an Order Granting Motion to Dismiss 19 Plaintiff’s Complaint [Doc. No. 21], and judgment was entered accordingly [Doc. No. 20 22]. On March 8, 2021, Plaintiff filed a motion for reconsideration and relief from 21 judgment pursuant to FRCP 60(b). [Doc. No. 23.] On March 19, 2021, Denis 22 McDonough, Secretary for the Department of Veterans Affairs, filed an opposition. 23 [Doc. No. 24.] No reply has been filed.1 For the reasons set forth below, the motion for 24 reconsideration and relief from judgment pursuant to FRCP 60(b) is DENIED. 25 26 27 1 On the notice of motion, Plaintiff set forth a hearing date of April 25, 2021, which is a Sunday. Assuming Plaintiff meant April 26, 2021, then any reply was due by April 19, 2021. See 28 1 DISCUSSION 2 Although the Federal Rules of Civil Procedure do not expressly authorize a motion 3 for reconsideration, “(a) district court has the inherent power to reconsider and modify its 4 interlocutory orders prior to the entry of judgment …” Posthearing Procedures, Cal. 5 Prac. Guide Fed. Civ. Pro. Before Trial, Ch. 12-E, §12:158, quoting Smith v. 6 Massachusetts, 543 US 462, 475 (2005). However, reconsideration is an “extraordinary 7 remedy, to be used sparingly.” Absent highly unusual circumstances, a motion for 8 reconsideration will not be granted “unless the district court is presented with newly 9 discovered evidence, committed clear error, or if there is an intervening change in the 10 controlling law.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F3d 877, 890 (9th Cir. 11 2000)(internal quotes omitted). 12 Rule 60 provides for extraordinary relief and may be invoked only upon a showing 13 of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 14 (9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final 15 judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or 16 excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could 17 not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud by 18 the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) and 19 other reason justifying relief.” Fed. R. Civ. P. 60(b). 20 Here, Plaintiff argues the court should reconsider the previous order dismissing the 21 case because Plaintiff’s failure to name or serve the Secretary within the 30-day period 22 was due to mistakes by “counsel and its staff who was not familiar with the Federal Rules 23 and processes.” [Doc. 23 at 9.] However, Plaintiff previously set forth the argument that 24 the 30-day statute should be tolled because his counsel was “unaware of any 30-day 25 requirement to serve or add the Secretary.” [Doc. No. 19 at 10:3-4.] As the Court noted, 26 ordinary attorney negligence does not justify equitable tolling. [Doc. No. 21 at 4, n. 1, 27 citing Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003)]. Moreover, neither in his 28 opposition to the motion to dismiss, nor in the motion for reconsideration, does Plaintiff 1 ||address Romain v. Shear, 799 F.2d 1416, 1418-19 (9th Cir. 1986), which holds that when 2 || a plaintiff fails to sue the Secretary or serve a government official within 30 days, the 3 ||case must be dismissed. That is exactly what happened here, and the Court sees no basis 4 ||to deviate from controlling Ninth Circuit precedent. Given that Plaintiff has presented no 5 ||new facts or other basis for relief, reconsideration is not warranted. 6 CONCLUSION 7 For the reasons set forth above, the motion for reconsideration/relief from 8 judgment is DENIED. 9 IT IS SO ORDERED. 10 ||Dated: April 20, 2021 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28