(HC) Schrubb v. Kernan

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA KEVIN RAY SCHRUBB, Case No. 18-cv-01195-JDP (HC) 12 Petitioner, ORDER DENYING PETITIONER’S MOTION 13 v. ECF No. 28 SCOTT KERNAN, 15 Respondent.

17 Petitioner Kevin Ray Schrubb, a state prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. On August 20, 2019, petitioner filed a “motion to rescind order granting respondent’s motion for extension of time.” ECF No. 28. In his motion, petitioner seeks (1) reconsideration of the court’s August 2, 2019, order and (2) to prevent respondent from filing a “third answer.” Id. at 5.

22 Reconsideration 23 Respondent moved for an extension of time to file an answer on December 4, 2018. ECF No. 14. In his request, respondent provided a detailed explanation for his request, citing, inter alia, his difficulties obtaining petitioner’s state level record. Id. at 2. Respondent certified that he served petitioner with a copy of this motion on December 4, 2018. Id. at 4. On December 21, 2018, respondent filed an answer to the petition and a first amended answer. ECF No. 16, 18.

28 Petitioner then moved three times for an extension of time to file his traverse. ECF No. 19, 21, 23. The court granted all three of petitioner’s extension requests. ECF No. 20, 22, 26. Petitioner filed his traverse on May 13, 2019. ECF No. 24. Considering respondent’s explanation in support of his December 4, 2019 motion for extension of time and the fact that respondent had only requested one extension previously, we granted respondent’s motion on August 2, 2019.

5 ECF No. 27. Petitioner now seeks reconsideration of our August 2, 2019 order granting respondent’s motion for an extension of time. ECF No. 28.

7 To succeed on a motion for reconsideration, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987). Rule 60(b) permits a district court to relieve a party from an order when the movant can show, among other circumstances, mistake, newly discovered evidence, fraud, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Local Rule 230(j) requires a party to show the “new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion.”

16 Here, petitioner has not claimed that any of the grounds requiring reconsideration are present—such as fraud, new evidence, or mistake. Petitioner has not provided any substantive reason why the order granting an extension of time should be overturned. Petitioner has not provided any other reason that justifies relief and has not even shown prejudice to his case.1 Petitioner only claims that the order should be rescinded because he never received a copy of respondent’s motion for an extension of time. I decline to overturn the order on these grounds.

22 However, to correct any possible service error, I direct the clerk of the court to send petitioner a copy of respondent’s December 4, 2018 motion for extension of time. ECF No. 14.

1 Petitioner has not shown that he suffered any prejudice from the failure to receive respondent’s motion. See Elrod v. Swanson, 478 F. Supp. 2d 1252 (D. Kan. 2007). Petitioner filed his traverse in May 2019, over five months after respondent filed his answer. Respondent’s motion for an extension of time was not granted until August 2019, three months after petitioner filed his traverse, which is the last substantive filing in this case.

1 | Third Answer 2 Finally, petitioner seeks to prevent respondent from filing a “third answer” in this case.

3 | ECF No. 28 at 5. Respondent has neither sought leave to file an additional amended answer, nor | filed an additional amended answer without leave of the court. Respondent filed an answer and | an amended answer on December 21, 2018. ECF No. 16, 18. These are the last filings || respondent has made in this case. Therefore, petitioner’s request is inapposite and this part of his | motion is also denied.

8 | Order 9 Accordingly, 10 1. Petitioner’s motion is denied. ECF No. 28.

11 2. The clerk of court is directed to send a copy of respondent’s motion for extension of | time to petitioner. ECF No. 14.

4 IT IS SO ORDERED.

15 ( Caan Dated: _ January 16, 2020 16 UNI STATES MAGISTRATE JUDGE | No. 206.