United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
before the Court is the Motion for Reconsideration (Doc. 52)
filed by Plaintiff Anthony Coss (“Coss”).
Although a Notice of Appeal has been filed, the Ninth Circuit
Court of Appeals has issued an Order holding its proceedings
in abeyance pending this Court's resolution of the Motion
for Reconsideration. The Court finds it has jurisdiction to
review the Motion for Reconsideration.
Coss has requested this matter be scheduled for oral
argument, the Court declines to set this matter for oral
argument. See LRCiv 7.2(f); 27A Fed.Proc., L.Ed.
§ 62:361 (June 2018) ("A district court generally
is not required to hold a hearing or oral argument before
ruling on a motion.").
Court has discretion to reconsider and vacate an order
granting dismissal. Barber v. Hawaii, 42 F.3d 1185,
1198 (9th Cir. 1994); United States v. Nutri-cology,
Inc., 982 F.2d 394, 396 (9th Cir. 1992). “The
purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d
906, 909 (3rd Cir. 1985), cert. denied, 476 U.S.
1171 (1986). A motion for reconsideration is not to be used
to ask a court “to rethink what the court had already
thought through - rightly or wrongly.” Above the
Belt, Inc. v. Mel Bohanan Roofing, Inc., 99 F.R.D. 99,
101 (E.D.Va. 1983) (limiting motions for reconsideration to
cases where the court has patently misunderstood a party,
where the court has made a decision outside the adversarial
issues presented to the court, where the court has made an
error not of reasoning but of apprehension, or where there
has been a controlling or significant change in the law or
facts since the submission of the issue to the court);
see also United States v. Rezzonico, 32 F.Supp.2d
1112, 1116 (D.Ariz. 1998).
legal errors are corrected on appeal and do not warrant
reconsideration. See e.g. Plotkin v. Pac. Tel. & Tel.
Co., 688 F.2d 1291, 1293 (9th Cir.1982); see also
Title v. United States, 263 F.2d 28, 31 (9th Cir.1959)
(“Rule 60(b) was not intended to provide relief for
error on the part of the court or to afford a substitute for
appeal.”). However, in McDowell v. Calderon,
197 F.3d 1253 (9th Cir.1999) (en banc) (per curiam), the
Ninth Circuit sitting en banc suggested that, not
only in the context of Rule 59(e), but also in the context of
Rule 60, “a failure to correct clear error” could
constitute an abuse of discretion. Id. at 1255 n. 4;
see also id. (“[W]e disapprove [of] any
suggestion . . . that a refusal to reconsider is an abuse of
discretion merely because the underlying order is erroneous,
rather than clearly erroneous.”).
asserts the Court has erred because it did not order Coss to
serve Tiffany and Bosco and David Cowles. He asserts the
Court should correct its error and order Coss to properly
serve Defendants Tiffany and Bosco and David Cowles. However,
what Coss fails to acknowledge that, pursuant to applicable
rules, Coss had a responsibility to timely serve all
Defendants whether or not the Court made a specific order. By
failing to do so, dismissal for failure to prosecute a claim
is appropriate. Fed.R.Civ.P. 41(b); see also Hells Canyon
Preservation Council v. United States Forest Service,
403 F.3d 683 (9th Cir. 2005).
Court previously stated:
Coss has not prosecuted this matter (i.e., completed service
of all Defendants) within the deadlines set by this Court.
Although Coss argues that he did not violate any Court order
because the Court order referred to service of Nationstar,
Coss does not discuss the Court's directive that, if Coss
did not timely complete proper service, Tiffany & Bosco
could again seek to have the matter dismissed. As service of
Tiffany & Bosco and Cowles has been quashed, Coss has not
timely completed proper service. In other words, Coss has
failed to timely prosecute this matter and has failed to
comply with an order of the Court.
January 9, 2019, Order (Doc. 50, p. 2). Coss has not set
forth any basis for the Court to reconsider its decision that
Coss failed to prosecute his claims. His disagreement with
the Court's ruling is not a basis for reconsideration.
Rather, Coss' argument that the Court was in error on
this issue should be directed to the appellate court.
Rezzonico, 32 F.Supp.2d at 1116, citing
Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc.,
605 F.Supp. 6, 7 (N.D.Ill. 1983). Additionally, the Court
finds the motion does not reveal any manifest errors of law.
See e.g., All Hawaii Tours Corp. v. Polynesian Cultural
Ctr. , 116 F.R.D. 645, 648-49 (D.Haw. 1987) (rev'd
on other grounds, 855 F.2d 860 (1988)) (motion for
reconsideration must demonstrate valid reason why the court
should reconsider its prior decision and must set forth facts
or law of a strongly convincing nature to induce the court to
reverse its prior decision). Rather, Coss is requesting the
Court to rethink what it has thought through - rightly or
IT IS ORDERED the Motion for Reconsideration (Doc. 52) is
Coss filed his Motion for
Reconsideration within 28 days of this Court's Order.
Generally, the filing of a valid notice of appeal divests a
district court of jurisdiction to alter, amend or modify the
order or judgment challenged in the appeal. Pope v. Sav. Bank
of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988). However,
a district court may clarify its judgment or order. Morris v.
Morgan Stanley & Co., 942 F.2d 648, 654-55 (9th Cir.
1991). Further, a, district court retains jurisdiction to
dispose of timely ...