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______________________________________________________________________________

Plaintiff’s Notice of Motion & Motion for Leave to File Motion for Reconsideration of Order & Judgment Granting Summary Judgment

 Alberto Rocha v. Hilda L. Solis, Secretary Case No. CV-08-3049-MHP

HOWARD MOORE, JR., SBN 55228

MOORE & MOORE

1563 Solano Avenue, #204

Berkeley, California 94707-2116

Telephone: (510) 552-7172

Facsimile: (510) 528-3024

Email: moorlaw@aol.com

Attorneys for Plaintiff, ALBERTO ROCHA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ALBERTO ROCHA, ) Civil Action No. C08-3049 MHP

 )

Plaintiff, ) PLAINTIFF’S NOTICE OF 

 ) MOTION FOR LEAVE TO FILE

 ) MOTION FOR RECONSIDERATION 

 ) OF THE ORDER AND JUDGMENT

vs. ) GRANTING DEFENDANT’S

 ) MOTION FOR SUMMARY 

HILDA L. SOLIS, Secretary, ) JUDGMENT

Department of Labor, )

 ) Date: June 14, 2010

Defendant. ) Time; 2:00 p.m.

_____________________________________ ) Ctrm: 15 18 Floor San Francisco th

Plaintiff ALBERTO ROCHA hereby gives notice that he will move the Court for leave to

treat his previously filed motion to set aside judgment pursuant to the Federal Rules of Civil

Procedure (FRCP) Rules 55©, Rule 59(a) and (e), and Rule 60(b)(1) and (6) as one to Request

Leave to File a Motion for Reconsideration of the Order and Judgment, entered April 15, 2010

(Documents #165 and #166), pursuant to Civ. L. Rule 7-9, on June 14, 2010, at 2:00 p.m., before

the Honorable Marilyn Hall Patel, Senior United States District Judge, in Courtroom 15, 18th

Floor, United States Courthouse, 450 Golden Gate Avenue, San Francisco, California, 94102. 

The grounds for this motion are set forth below in the Declaration of Counsel.

---

5/11/2010

U

NITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DENIED

Judge Marilyn H. Patel

Case 3:08-cv-03049-MHP Document 79 Filed 05/11/10 Page 1 of 3
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______________________________________________________________________________

Plaintiff’s Notice of Motion & Motion for Leave to File Motion for Reconsideration of Order & Judgment Granting Summary Judgment

 Alberto Rocha v. Hilda L. Solis, Secretary Case No. CV-08-3049-MHP

2

Declaration of Counsel

1. I am an attorney at law and admitted to practice before all of the courts of California and

an active member of the Bar of this Court. I am counsel of record for Plaintiff Alberto Rocha on

whose behalf I make the within motion for leave to file a motion for reconsideration of the order

and judgment granting Defendant’s motion for summary judgment. I have personal knowledge of

all matters stated herein, and, if I were called and sworn as witness in this civil action, I would

and could competently testify to all of the facts set forth herein, based upon my own personal

knowledge.

2. I make this motion on the direction of the Court’s Courtroom Deputy who

informed me via email that the Court treated the motion which I filed on behalf of Plaintiff to set

aside default and default judgment, to alter or amend judgment, or for new trial, or for relief from

judgment pursuant to the FRCP, Rules 55(c),Rule 59(a) and (e), and Rule 60(b)(1) and 6,

respectively, as a motion for reconsideration for which Plaintiff was required to request leave or

permission from the Court to file. Accordingly, I now request leave from the Court to file said

motion.

3. I did not request leave from the Court to file the motion because I did not believe

that leave was required. Civ. L. Rule 7-9, on its face, requires leave to file a motion for

reconsideration prior “to the entry of judgment adjudicating all of the claims and the rights and

liabilities of all parties in the case” and, therefor, Rule 7-9 applies only to interlocutory orders. In

this case, both a final order and judgment which adjudicated all of the claims in the action was

entered before Plaintiff’s motion to set aside the judgment was made. For that reason, I did not

believe Plaintiff could make the showing required by Rule 7-9(b) to support a request for leave to

file a motion for reconsideration.

4. Nevertheless, Plaintiff requests the Court to either treat his motion as one for

reconsideration or allow it to be heard as a matter of right under FRCP, Rule 55(c), 59(a) and (e),

and Rule 60(b)(1) and (6). 

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Plaintiff’s Notice of Motion & Motion for Leave to File Motion for Reconsideration of Order & Judgment Granting Summary Judgment

 Alberto Rocha v. Hilda L. Solis, Secretary Case No. CV-08-3049-MHP

3

5. The Court treated Defendant’s motion for summary judgment as an unopposed

motion on the grounds Plaintiff did not timely file his opposition to the motion and for defects in

the opposition which Plaintiff did in fact file. The Court noted that the parties had stipulated to

the hearing on the motion for summary judgment. In the latter regard, Plaintiff asks the Court to

relieve him from the inadvertence, mistake, surprise, or excusable neglect of counsel in executing

the stipulation. Civ. L. Rule 7-3 provides that an opposition to a motion must be “served and

filed not less than 21 days before the hearing date.” Due to inadvertence, mistake, surprise, or

excusable neglect, I entered into a stipulation which allowed Plaintiff less than 21 days in which

to serve and file his opposition to Defendant’s motion for summary judgment. Due to the

complexity of Defendant’s motion, Plaintiff clearly needed more time in which to prepare, serve,

and file his opposition to Defendant’s motion for summary judgment than the 14 days which the

stipulation provided.

6. As a result, due to no fault of the Court, a manifest failure to consider material

facts and dispositive argument occurred, as demonstrated in Plaintiff’s Corrected Memorandum

of Points and Authorities to set aside the judgment filed herewith.

Executed under penalty of perjury of the laws of the United States that the foregoing is

true and correct at Berkeley, California, on May 9, 2010.

s/Howard Moore, Jr.

_______________________

HOWARD MOORE, JR.

Attorney for Plaintiff

Case 3:08-cv-03049-MHP Document 79 Filed 05/11/10 Page 3 of 3