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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN C. HETHERINGTON,

Plaintiff, No. CIV S-04-1287 GEB GGH P

vs.

JOHN ASHCROFT, et al.,

Defendants. ORDER

 /

Plaintiff has filed a request for reconsideration of

this court's order filed March 23, 2005, denying plaintiff’s

motion for reconsideration of the Magistrate Judge’s order filed

February 15, 2005. 

Standards For Motions To Reconsider

Although motions to reconsider are directed to the

sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v.

Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations

of judicial economy weigh heavily in the process. Thus Local

Rule 78-230(k) requires that a party seeking reconsideration of a

district court's order must brief the “new or different facts or

circumstances [which] were not shown upon such prior motion, or

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what other grounds exist for the motion.” The rule derives from

the “law of the case” doctrine which provides that the decisions

on legal issues made in a case “should be followed unless there

is substantially different evidence . . . new controlling

authority, or the prior decision was clearly erroneous and would

result in injustice.” Handi Investment Co. v. Mobil Oil Corp.,

653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire,

767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064

(1986).

Courts construing Federal Rule of Civil Procedure

59(e), providing for the alteration or amendment of a judgment,

have noted that a motion to reconsider is not a vehicle

permitting the unsuccessful party to “rehash” arguments

previously presented, or to present “contentions which might have

been raised prior to the challenged judgment.” Costello v.

United States, 765 F.Supp. 1003, 1009 (C.D.Cal. 1991); see also

F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Keyes v.

National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa.

1991). These holdings “reflect[] district courts' concerns for

preserving dwindling resources and promoting judicial

efficiency.” Costello, 765 F.Supp. at 1009.

Discussion

On October 22, 2004, the magistrate judge dismissed the

complaint and granted plaintiff thirty days to file an amended

complaint. On November 17, 2004, plaintiff filed objections to

this order. On November 29, 2004, this court construed the

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objections as a request for reconsideration and affirmed the

October 22, 2004, order. On December 6, 2004, plaintiff filed an

interlocutory appeal of the November 29, 2004, order.

On January 26, 2005, the Ninth Circuit Court of Appeals

dismissed plaintiff’s appeal. On February 15, 2005, the

Magistrate Judge ordered plaintiff to file an amended complaint

within thirty days. On March 9, 2005, plaintiff filed a motion

for reconsideration of this order. On March 23, 2005, this court

affirmed the February 15, 2005, order. Now pending is

plaintiff’s April 11, 2005, motion for reconsideration of the

March 23, 2005, order.

At this point, plaintiff’s refusal to file an amended

complaint is game playing. If plaintiff does not file an amended

complaint within thirty days, this action will be dismissed.

Accordingly, IT IS HEREBY ORDERED that:

1. Upon reconsideration, this court's order of March

23, 2005, is affirmed

2. Plaintiff’s amended complaint is due within thirty

days of the date of this order; failure to file an amended

complaint within this time will result in dismissal of this

action.

Dated: April 18, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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