United States District Court, W.D. Washington, Tacoma
B. Leighton, United States District Judge.
MATTER is before the Court on its own Order to Show Cause
[Dkt. # 53] and on Plaintiff Longacre's Motion for
Reconsideration [Dkt. # 55] of the Court's Order [Dkt. #
53] Dismissing the Wilbur & Associates Defendants.
Court Ordered Defendant Smarr to Show Cause why its Order
dismissing him for lack of timely service should not be
vacated under Rule 60(b), as it was error. Smarr argues that
Rule 60(a) governs the correction of clerical
errors, not Rule 60(b), and points out that Longacre did not
appeal Smarr's dismissal. He does not contend that the
ruling was proper; he contends that the Court can't
correct it sua sponte.
failure to (attempt to) immediately appeal is no barrier to
correcting now what the 9th Circuit will surely correct
later, if he appeals any final judgment in this case. Relying
on quite a bit more than just “a District Court case
from Maryland, ” the Court's Order explained that
Smarr's own removal of the case gave Longacre a
“new 90” days to effect service. See
Order [Dkt. # 53] at 8, citing Fed. R. Civ. P. 4(m)
and 81, 28 U.S.C. § 1448, Charles A. Wright, Arthur R.
Miller & Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE
§ 3732, at 513, 516); Cardenas v. City of
Chicago, 646 F.3d 1001 (7th Cir. 2011) (“The same
120-day [now 90] period applies where suits are removed to
federal court from state court, except that the period
commences upon the date of removal.”); and Whidbee
v. Pierce Cty., 857 F.3d 1019, 1023 (9th Cir. 2017)
(“[O]nce a case is removed to federal court, a
plaintiff has a specified number of days to effect service of
process on all defendants, regardless whether the plaintiff
failed to serve process in state court before the deadline
for commencing an action had passed.”).
has not cited and cannot cite any authority to the contrary.
His Motion to Dismiss [Dkt. # 18] argued that the time for
service had run, and the Court mistakenly agreed. The Order
dismissing Smarr for lack of timely service [Dkt. # 28] is
VACATED as erroneous.
Local Rule 7(h)(1), motions for reconsideration are
disfavored, and will ordinarily be denied unless there is a
showing of (a) manifest error in the ruling, or (b) facts or
legal authority which could not have been brought to the
attention of the court earlier, through reasonable diligence.
The term “manifest error” is “an error that
is plain and indisputable, and that amounts to a complete
disregard of the controlling law or the credible evidence in
the record.” Black's Law Dictionary 622 (9th ed.
is an “extraordinary remedy, to be used sparingly in
the interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “[A]
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” Marlyn Natraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009). Neither the Local Civil Rules nor the Federal Rule of
Civil Procedure, which allow for a motion for
reconsideration, is intended to provide litigants with a
second bite at the apple. A motion for reconsideration should
not be used to ask a court to rethink what the court had
already thought through - rightly or wrongly. Defenders
of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz.
1995). Mere disagreement with a previous order is an
insufficient basis for reconsideration, and reconsideration
may not be based on evidence and legal arguments that could
have been presented at the time of the challenged decision.
Haw. Stevedores, Inc. v. HT & T Co., 363
F.Supp.2d 1253, 1269 (D. Haw. 2005). “Whether or not to
grant reconsideration is committed to the sound discretion of
the court.” Navajo Nation v. Confederated Tribes
& Bands of the Yakima Indian Nation, 331 F.3d 1041,
1046 (9th Cir. 2003).
Motion for Reconsideration sheds some light on the
“Wilbur” aspect of the case, and it would have
been helpful to provide the full story earlier. It would not
however, change the Court's conclusion that Wilbur's
repeating the officer's mistake was not the proximate
cause of any ...