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Whitaker v. Laroche, 18cv171-CAB-BGS. (2019)

Court: District Court, N.D. California Number: infdco20190708842 Visitors: 27
Filed: Jul. 05, 2019
Latest Update: Jul. 05, 2019
Summary: ORDER DENYING MOTION TO VACATE [Doc. No. 39] CATHY ANN BENCIVENGO , District Judge . On May 14, 2019, this Court issued an order denying Plaintiff's motion for extension to appeal dismissal of case and request for court-appointed attorney. [Doc. No. 38.] On June 25, 2019, Plaintiff filed a motion to vacate the Court's May 14, 2019 order, which the Court views as a motion for reconsideration. [Doc. No. 29.] On June 28, 2019, the Ninth Circuit Court of Appeals dismissed the appeal for lack of
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ORDER DENYING MOTION TO VACATE [Doc. No. 39]

On May 14, 2019, this Court issued an order denying Plaintiff's motion for extension to appeal dismissal of case and request for court-appointed attorney. [Doc. No. 38.] On June 25, 2019, Plaintiff filed a motion to vacate the Court's May 14, 2019 order, which the Court views as a motion for reconsideration. [Doc. No. 29.] On June 28, 2019, the Ninth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction. [Doc. No. 40.]

Motions for reconsideration should not be frequently made or freely granted; they are not a substitute for appeal or a means of attacking some perceived error of the court. See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). "`[T]he major grounds that justify reconsideration involve an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n. 5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)).

Here, Plaintiff has not presented any evidence justifying reconsideration. In his previous motion for extension of time to appeal, Plaintiff acknowledged that he received notice of the judgment on January 8, 2019. Now Plaintiff claims he was not able to access a law library until February 11, 2019. This does not change the analysis under FRAP 4(a)(5)(A), as the motion to extend was filed beyond the 30-day deadline. And even if the Court were to construe February 11, 2019, as the date Plaintiff received notice of the judgment under FRAP 4(a)(6), it is still untimely because the motion to extend the time to appeal was not filed within 14 days after receipt of the judgment. Therefore, Plaintiff's motion for reconsideration is DENIED.

IT IS SO ORDERED.

Source:  Leagle

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