United States District Court, D. Arizona
G. Campbell United States District Judge
30, 2016, the Court dismissed Plaintiffs’ second
amended complaint for failure to make a pre-suit litigation
demand. Doc. 82. This dismissal was without prejudice, but
the Court indicated that any additional amendment would be
contingent on Plaintiffs’ payment of the
attorneys’ fees incurred by Defendants in litigating
the motion to dismiss the second amended complaint.
Id. at 25. In dismissing the complaint, the Court
declined Plaintiffs’ request to unseal evidence from
the related securities fraud action, Smilovits v. First
Solar Inc., No. 12-CV-00555-PHX-DGC.
have filed a motion for reconsideration. Doc. 83. The Court
ordered Defendants to respond, Doc. 86, which they did, Doc.
88. Plaintiffs raise three issues.
Plaintiffs ask the Court to withdraw its ruling that
Plaintiffs may not obtain certain sealed records in
Smilovits. Plaintiffs note that they have filed a
motion to intervene in Smilovits and a motion to
unseal the records in that case, and ask the Court to
withdraw any current ruling on that issue. The Court will
address Plaintiffs’ motion in Smilovits
separately and after full briefing, but will not reconsider
the request made in this litigation. The Court has twice
concluded that Plaintiffs are not permitted to conduct
discovery in support of their Rule 23.1 showing. Docs. 62 at
5, 82 at 24. Plaintiffs make arguments in their motion for
reconsideration that could have been made earlier and,
therefore, do not provide a basis for reconsideration. To the
extent Plaintiffs argue in their Smilovits motion
that they have a separate and sufficient basis to obtain the
records, the Court will address that argument after full
briefing in Smilovits.
Plaintiffs ask the Court to extend the September 16, 2016
deadline for filing a new complaint in this action until 30
days after the Court resolves the motions in
Smilovits. This is not a request for
reconsideration. Because the Court must rule on the
Smilovits motion after full briefing, however, the
Court will grant this request.
Plaintiffs ask the Court to reconsider its ruling that any
additional amendment be made contingent on Plaintiffs’
payment of attorneys’ fees. The relevant portion of the
Court’s order stated:
If leave to amend is granted, Defendants argue that it should
be “conditioned on the plaintiff paying the
defendants’ attorneys’ fees incurred on the
initial motion to dismiss.” Plaintiffs do not argue to
the contrary. Given that Plaintiffs are seeking leave to file
their fourth complaint, the Court agrees that such
leave should be contingent on Plaintiffs’ payment of
the attorneys’ fees Defendants incurred in litigating
this motion. If Plaintiffs elect to file an amendment,
Defendants may move for attorneys’ fees pursuant to
Doc. 82 at 25 (citations and quotation marks omitted;
emphasis in original). Citing International Association
of Machinists & Aerospace Workers v. Republic
Airlines, 761 F.2d 1386, 1391 (9th Cir. 1985),
Plaintiffs argue that “a condition of the payment of
attorneys’ fees is generally unreasonable absent a
finding of bad faith, prejudice, or rule violations.”
Doc. 83 at 13. Plaintiffs note that the Court did not make
such findings in imposing the condition. Id.
argued that any amendment should be conditioned on payment of
attorneys’ fees in their motion, in their reply, and at
oral argument. See Docs. 70 at 22; 77 at 17 n.15; 87
at 43. At no point did Plaintiffs suggest that such a
condition would be improper. Motions for reconsideration are
not the place to make arguments that could have been made in
the original briefing. Nw. Acceptance Corp. v. Lynnwood
Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).
argue that the Court’s prior ruling contravenes the
Supreme Court’s guidance that “attorney’s
fees certainly should not be assessed lightly or without fair
notice and an opportunity for a hearing on the record.”
Roadway Express, Inc. v. Piper, 447 U.S. 752, 766
(1980). Although the Court concludes that Plaintiffs had an
ample opportunity to address Defendants’ suggestion
that attorneys’ fees should be assessed, Plaintiffs
will have an opportunity to be heard if and when Defendants
file a Rule 54(d)(2) motion. See Fed. R. Civ. P.
54(d)(2)(C). At that point, Plaintiffs can raise any
arguments they may have as to why an assessment of
attorneys’ fees would be improper.
Plaintiffs’ motion for reconsideration (Doc. 83) is
Plaintiffs may file an amended complaint within 30 days of
the Court’s decision on ...