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Munoz v. State

United States District Court, D. Nevada

August 20, 2014

PETER J. MUNOZ, Plaintiff(s),
v.
STATE OF NEVADA, et al., Defendant(s).

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court are pro se petitioner Peter Munoz, Jr.'s (hereinafter "petitioner") motion to reconsider judgment, (doc. #9), and motion for extension of time, (doc. # 10).

I. Background

On July 17, 2013, petitioner filed a collection of documents with the court attempting to appeal his conviction entered in the Supreme Court of Nevada. (Doc. #1). On April 16, 2014, the clerk noted on the docket that dismissal in this case would be appropriate pursuant to Local Rule 41-1 due to inactivity for at least 270 days. LR 41-1. On April 22, 2014, Magistrate Judge Ferenbach ordered petitioner to pay the $350 required filing fee or make an appropriate application to the court regarding the filing fee requirement in the case. (Doc. #2). The magistrate judge warned that failure to comply with the order would result in a report and recommendation that the action should be dismissed. (Doc. #2).

On May 19, 2014, petitioner filed an application to proceed in forma pauperis. (Doc. # 3). On June 5, 2014, the magistrate judge granted petitioner's application to proceed in forma pauperis but recommended that petitioner's complaint be dismissed with prejudice on the grounds that it seeks review of a decision by the Supreme Court of Nevada. (Doc. #4). Pursuant to local rules IB 3-1 and IB 3-2, the magistrate judge noted that objections must be filed in writing within fourteen days. LR IB 3-1, 3-2.

On August 1, 2013, the court adopted Magistrate Judge Ferenbach's report and recommendation in its entirety, dismissing the action with prejudice. (Doc. #6). On August 13, 2014, petitioner filed a motion to reconsider judgment, (doc. #9), and motion to extend time, (doc. #10). On the same date, petitioner also filed a notice of change of address, (doc. #8), and an objection to the report and recommendation, (doc. #11).

II. Legal Standard

A. Motion to Reconsider

A motion for reconsideration "should not be granted, absent highly unusual circumstances." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Fed.R.Civ.P. 60(b). "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Fed.R.Civ.P. 59(e).

B. Motion for Extension of Time

Federal Rule of Civil Procedure 6(b) and local rule 6-1 provide that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time... on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b); LR 6-1. The Supreme Court has set forth four factors that a court must take into account in determining whether neglect is excusable: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).

III. Discussion

A. Motion to Reconsider

Petitioner asks the court to reconsider any judgment made in this case between March and July 2014. Petitioner states that during that period of time, he was hospitalized twice, forced to undergo an amputation of his leg, and had to move ...


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