1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KENNETH LAWRENCE LENK, Case No. 20-cv-08094-BLF

9 Plaintiff, ORDER DENYING PLAINTIFF’S

FOURTH MOTION TO AMEND OR

10 v. ALTER JUDGMENT PURSUANT TO

FEDERAL RULE OF CIVIL

11 MONOLITHIC POWER SYSTEMS, INC., PROCEDURE 59(e) (ERRONEOUSLY

TITLED AS THIRD MOTION)

12 Defendant. [Re: ECF 49] 13

14 15 Plaintiff Kenneth Lawrence Lenk (“Lenk”) has filed a fourth motion1 to alter or amend 16 judgment pursuant to Federal Rule of Civil Procedure 59(e). See Mot., ECF 84. Defendant 17 Monolithic Power Systems, Inc. (“MPS”) has filed opposition and Lenk has filed a reply. See 18 Opp., ECF 85; Reply, ECF 86. The Court finds the motion suitable for decision without oral 19 argument. See Civ. L.R. 7-1(b). 20 Lenk “requests amended judgment pursuant to Rule 59(e)” based on his assertion that the 21 undersigned judge was required to withdraw from the case pursuant to 28 U.S.C. § 455 but failed 22 to do so. Mot. at 1 (emphasis in original). Lenk requests that the Court amend the judgment in 23 this case, as well as the judgments in his three prior unsuccessful cases against MPS, and that all 24 fee awards against him be vacated. See id. at 10. 25

26 1 Lenk erroneously titles the motion as his third under Rule 59(e), but he has filed three prior Rule 59(e) motions in this case: a first Rule 59(e) motion filed on December 3, 2021, see ECF 34, and 27 denied on February 15, 2022, see ECF 44; a second Rule 59(e) motion filed on April 14, 2022, see 1 Lenk’s Rule 59(e) motion is untimely and this Court therefore is without authority to 2 || consider it. “A motion to alter or amend a judgment must be filed no later than 28 days after the 3 || entry of the judgment.” Fed. R. Civ. P. 59(e). “[T]he district court has no discretion to consider a 4 late rule 59(e) motion.” Carter v. United States, 973 F.2d 1479, 1488 (9th Cir. 1992); see also 5 || Amerson v. Kindredcare, Inc., 606 F. App’x 371, 372 (9th Cir. 2015) (“The time period for filing 6 || a Rule 59(e) motion is jurisdictional and cannot be extended by the court.”). The amended 7 || judgment in this case was entered on November 8, 2022. See Am’d Jud., ECF 78. The current 8 Rule 59(e) motion was filed more than 28 days later, on January 30, 2023. See Mot., ECF 84. 9 || Accordingly, Lenk’s current motion for relief under Rule 59(e) must be denied as untimely. 10 The Court observes that the purported basis for Lenk’s current motion, that the 11 undersigned should have recused under 28 U.S.C. § 455, was previously raised and rejected in this 12 action. On July 2, 2022, Lenk filed a motion for recusal under 28 U.S.C. $§ 144 and 455, raising 5 13 the same arguments presented in his current untimely Rule 59(e) motion. See Mot. for Recusal, 14 || ECF 62. The motion for recusal was randomly reassigned to Judge Haywood S. Gilliam for 3 15 || disposition. See Clerk’s Notice, ECF 65. Judge Gilliam denied the motion for recusal, and denied a 16 || Lenk’s motion for reconsideration of that ruling. See Orders, ECF 69, 76. Lenk has provided no 3 17 legal authority for the proposition that he may simply renew his recusal-related arguments in a 18 || new filing under Rule 59(e). For that reason, Lenk’s current Rule 59(e) motion would be subject 19 to denial even if it were timely (which it is not). 20 Plaintiff's Rule 59(e) motion is DENIED as untimely. 21 22 Dated: March 6, 2023 fa tw Lies

BETH LABSON FREEMAN

23 United States District Judge 24 25 26 27 28