1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRITTONI ESTRELLA, individually and No. 1:22-cv-00921-MCE-JDP as co-successor-in-interest to 12 Decedent Paul David Chavez, Jr., et al., 13 MEMORANDUM AND ORDER Plaintiffs, 14 v. 15 CITY OF MODESTO, 16 Defendant. 17 18 19 By way of this action, Plaintiffs Brittoni Estrella and her three minor children 20 (“Plaintiffs”) seek to recover from Defendant City of Modesto (“Defendant”) for injuries 21 sustained when Estrella’s husband and the children’s father, Paul David Chavez, Jr., 22 was shot and killed by Defendant’s police officers. The Court previously granted with 23 leave to amend Defendant’s Motion to Dismiss Plaintiffs’ state law claims for failure to 24 comply with the provisions of California’s Government Claims Act (the “Act”), California 25 Government Code §§ 810 et seq. ECF No. 30. Presently before the Court are a Motion 26 for Reconsideration (ECF No. 32) and a Motion to Amend the Amended Complaint 27 (“ECF No. 44), both filed by Plaintiffs. For the following reasons, the Motion for 28 1 Reconsideration is DENIED, and the Motion to Amend is GRANTED.1 2 3 ANALYSIS 4 5 A. Motion for Reconsideration 6 Rule 60(b) of the Federal Rules of Civil Procedure Rule permits reconsideration of 7 a district court order based on: 8 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, 9 could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or 10 misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . ; 11 or (6) any other reason justifying relief from the operation of the judgment. 12 Fed. R. Civ. P. 60(b)(1)-(b)(6). Rule 60 reconsideration is generally appropriate in three 13 instances: (1) when there has been an intervening change of controlling law; (2) new 14 evidence has come to light; or (3) when necessary to correct a clear error or prevent 15 manifest injustice. School District No. 1J v. ACandS, Inc.,

, 1262 (9th 16 Cir. 1993). 17 Plaintiffs’ motion does not fall under any of these categories. Instead, Plaintiffs 18 move for reconsideration on the basis that this Court failed to consider two non-binding 19 authorities, Malear v. State,

(2023) and Franklin v. City of 20 Kingsburg, No. 1:18-CV-0824 AWI SKO,

(E.D. Cal. Apr. 17, 2023), 21 not presented to the Court in connection with the parties’ original briefing. The fact that 22 those cases were not cited to or by the Court does not mean that they were not 23 considered. Rather, given that there is a split of authority, the Court cited decisions with 24 which it agreed, and it was not required to address every non-binding case in which 25 other judges or courts may have seen things differently. Plaintiff’s Motion for 26

27 1 Because oral argument would not have been of material assistance, the Court declined to set a hearing date and decides this matter on the briefs. E.D. Local Rule 230(g). 28 1 | Reconsideration is DENIED. 2 B. Motion to Amend 3 Leave to amend should be freely given “when justice so requires.” Fed. Rule Civ. 4 | Pro. 15(a)(2). In this case, Plaintiffs seek leave to amend to substitute newly identified 5 || individuals for Doe defendants. Especially at this early stage in these proceedings, the 6 || Court finds amendment is appropriate. Plaintiffs’ Motion to Amend is thus GRANTED. 7 8 CONCLUSION 9 10 For the reasons just stated, Plaintiffs’ Motion for Reconsideration (ECF No. 32) is 11 | DENIED, and their Motion to Amend (ECF No. 44) is GRANTED. Defendant shall not be 12 || required to respond to the Second Amended Complaint. Not later than twenty days 13 || following the date this order is electronically filed, Plaintiffs shall file their Third Amended 14 | Complaint. Finally, the parties are advised that a scheduling order will issue shortly. 15 IT |S SO ORDERED. 16 | Dated: April 12, 2024 Eo 17 { late rf LEK. ‘8 SENIOR UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 ? The Court is aware that Plaintiffs contend the end result will be the same because they will file a new federal lawsuit setting forth only their state law claims, which would then be consolidated with this 27 action. The Court expresses no opinion as to whether that approach would be successful, but it nonetheless reminds the parties that federal courts do not typically have subject matter jurisdiction over 28 | state law claims between non-diverse parties.