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Tamayo v. State

United States District Court, D. Nevada

February 28, 2018

TERESITA F. TAMAYO, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge

         Pending before the Court is pro se Plaintiff Teresita F. Tamayo's (“Plaintiff”) Writ of Error, (ECF No. 9), concerning the Court's Minute Order, (ECF No. 4), and the Court's Order dismissing the action without prejudice, (ECF No. 6).

         Also pending is Plaintiff's Motion for Default Judgment, (ECF No. 10). Defendant Select Portfolio Servicing, Inc. (“Defendant”) filed a Response, (ECF No. 11), and Plaintiff filed a Reply, (ECF No. 13).

         In addition, pending before the Court is Defendant's Motion to Strike, (ECF No. 16). Plaintiff filed a Response, (ECF No. 17), and Defendant filed a Reply, (ECF No. 18). For the reasons discussed herein, Plaintiff's Writ of Error and Motion for Default Judgment are DENIED and Defendant's Motion to Strike is GRANTED.

         I. BACKGROUND

         Plaintiff filed the instant action on January 9, 2017, (ECF No. 1). On January 11, 2017, the Court ordered Plaintiff to show cause as to why the Court should not dismiss the action for Plaintiff's failure to satisfy the requirements of diversity jurisdiction under 28 U.S.C. § 1332. (ECF No. 4). Plaintiff failed to respond by the Court's deadline and the Court subsequently dismissed the case without prejudice on January 31, 2017. (ECF No. 6). On April 24, 2017, Plaintiff filed a Motion for Default Judgment. (ECF No. 10).

         Plaintiff also filed three documents including a Motion entitled “Writ of Error Qua Corum Nobis, ” (ECF No. 9), and two Notices entitled “Conditional Acceptance, ” (ECF No. 14), and “Ruling & Judgment, ” (ECF No. 15). In each of these three documents, Plaintiff purports to sign as though she has authority to act on behalf of the Court. Specifically, the three documents begin with the wording “[c]omes now the court, ” or “[t]he Court comes now.” (See Mot., ECF No. 9); (Notice, ECF No. 14); (Notice, ECF No. 15). All three filings end with Plaintiff's signature under the wording “The Court, ” and contain a seal purporting to be the Court's seal. (See Mot. 14, ECF No. 9); (Notice 5, ECF No. 14); (Notice 5, ECF No. 15).

         II.PLAINTIFF'S WRIT OF ERROR

         Plaintiff filed a document under the heading “Writ of Error Qua Corum Nobis Residant Re: Minute Order, ” (ECF No. 9).[1] Plaintiff appears to be seeking reconsideration of the Court's Minute Order, (ECF No. 4), and the Court's subsequent Order of dismissal, (ECF No. 6). (See Mot. ¶ 1, ECF No. 9). In light of Plaintiff's status as a pro se litigant, the Court will liberally construe Plaintiff's filing as a Motion for Reconsideration. See Middleton v. Omely Telecom Corp., No. 2:16-cv-01369-JAD-GWF, 2017 WL 5559913, at *2 (D. Nev. Nov. 16, 2017); see also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

         “[A] motion for reconsideration should not be granted, absent highly unusual circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation omitted). Reconsideration is appropriate where: (1) the court is presented with newly discovered evidence, (2) the court 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, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). However, a motion for reconsideration is not a mechanism for rearguing issues presented in the original filings. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). Furthermore, although the court enjoys discretion in granting or denying a motion under this rule, “amending a judgment after its entry remains an extraordinary remedy which should be used sparingly.” Allstate Ins. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (internal quotation marks and citation omitted).

         The Court finds that there was no error in the Court's Order instructing Plaintiff to show cause as to why the action should not be dismissed for failure to satisfy the requirements of 28 § U.S.C. 1332. Plaintiff's Complaint alleges only state causes of action and fails to provide a statement regarding the grounds for the Court's jurisdiction pursuant to Federal Rule of Civil Procedure 8(a). (See Compl., ECF No. 1). Accordingly, the Court ordered Plaintiff to show cause by identifying the basis for the Court's jurisdiction. (See ECF No. 4). Plaintiff failed to comply with the Court's deadline and the Court subsequently dismissed the case, (ECF No. 6). There was no error in the Court's Order and, therefore, Plaintiff's Motion is denied.

         III. PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

         Plaintiff's Motion for Default Judgment, (ECF No. 10), is without merit. The case had already been closed at the time of Plaintiff's Motion in light of Plaintiff's failure to show cause. (See ECF No. 6). Accordingly, Plaintiff's Motion for Default Judgment is denied.

         IV. DEFENDANT'S ...


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