United States District Court, D. Arizona
Advocates for Individuals with Disabilities Foundation Incorporated, Plaintiff,
Golden Rule Properties LLC, Defendant.
HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Advocates for Individuals with
Disabilities Foundation Incorporated's
(“Advocates”) Motion to Reconsider (Doc. 31.) For
the following reasons, the motion is denied.
Advocates filed suit against Defendant Golden Rule
Properties, LLC (“Golden Rule”) for violations of
the Americans with Disabilities Act (“ADA”) as
well as its counterpart under Arizona law on June 9, 2016.
(Doc. 1 at 1.) Golden Rule's counsel contacted Advocates
on July 18, 2016 to inform Advocates and its counsel, Mr.
Zazueta, that Golden Rule intended to remove every case
Advocates filed with a federal claim. (Doc. 12 at 14-15.)
This included this case as well as several others.
(Id.) Defense counsel went on to inform Mr. Zazueta
that failure to dismiss federal claims prior to removal would
result in the defense incurring the “unnecessary
additional cost of removal for nothing.” (Doc. 12 at
14.) In turn, Mr. Zazueta assured defense counsel that AID
and its outside counsel, Mr. Strojnik, intended to pursue
their causes of action under both state and federal law.
(Id. at 13.)
Rule promptly removed the case to federal court. (Doc. 1.)
Advocates moved to dismiss its federal claims less than ten
days later. (Doc. 8.) There is no indication that anything
changed in those ten days to incentivize the dismissal of the
federal claims. (Doc. 22 at 13.) Pursuant to Mr.
Zazueta's testimony at the oral argument on September 29,
2016, it was ultimately Mr. Zazueta's, Mr.
Strojnik's, and an Advocates' representative, Mr.
Alex Callen's, decision to dismiss the federal claims a
week after removal. (Show Cause Hr'g Tr. 50:17-25,
51:1-2, Sept. 29, 2016.)
Motion to Reconsider introduces facts that are contrary to
the moving parties' testimony in the record. At the
hearing held on September 29, Mr. Zazueta stated that he has
“complete autonomy” over legal decisions made on
behalf of Advocates, although he “receive[s] advice
from outside counsel.” (Id. at 48:8-11.)
However, in his declaration attached to the Motion to
Reconsider, Mr. Zazueta claims that he advised Advocates to
dismiss the federal claims prior to removal, and that he was
overruled by his client and Mr. Strojnik. (Doc. 31-1 at 1.)
Likewise, as of the September 29, 2016 hearing there was no
evidence that Advocates ever reimbursed a defendant for their
removal costs. (Id. at 42:2-6.) Defense counsel
directly asked Mr. Strojnik if he was aware of any such
reimbursements, and Mr. Strojnik affirmatively stated that
“I don't recall. It could have happened. I
don't recall.” (Id.) Yet in its Motion to
Reconsider, Advocates asserts that five days prior to the
hearing in this case, the corporation reimbursed defense
counsel's firm for costs incurred during removal in
another case. (Doc. 31 at 2.) This was allegedly done at the
“recommendation of Plaintiff's counsel Peter
Strojnik and Fabian Zazueta.” (Doc. 31 at 2.)
light of the facts in the record at the time of the hearing,
the Court entered an order dismissing the federal claims,
remanding the remaining claims back to state court, awarding
costs to Golden Rule under the Removal Statute, and
sanctioning Advocates as well as their counsel under §
1927. (Doc. 28.) Advocates and their counsel filed a Motion
to Reconsider the award of costs to Golden Rule and the
sanctions against Plaintiff and Plaintiff's counsel, Mr.
Zazueta and Mr. Strojnik. (Doc. 31.) Specifically,
Advocates' Motion introduces new evidence to contest the
Court's finding of facts and argues that the Court made a
manifest error of law by awarding the Defendant costs under
the Removal Statute.
Rule 59(e), a motion for reconsideration may be granted only
on one of four grounds: “1) the motion is necessary to
correct manifest errors of law or fact upon which the
judgment is based; 2) the moving party presents newly
discovered or previously unavailable evidence; 3) the motion
is necessary to prevent manifest injustice or 4) there is an
intervening change in controlling law.” Turner v.
Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063
(9th Cir. 2003) (internal quotations and emphasis omitted).
Motions for reconsideration are disfavored, and they should
not be used to ask the Court to “rethink what the court
has already thought through─rightly or wrongly.”
See United States v. Rezzonico, 32 F.Supp.2d 1112,
1116 (D. Ariz. 1998) (quoting Above the Belt, Inc. v. Mel
Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.
It is Improper to Introduce New Facts in a Rule 59(e)
Motion is a thinly veiled attempt to introduce new facts and
arguments to the proceedings after judgment. “A Rule
59(e) motion may not be used to raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier in the litigation.”
Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000). Therefore, it is improper to
introduce new evidence that was available to the parties at
the time the district court ruled in a Rule 59(e) motion.
See Emmons v. McLaughlin, 874 F.2d 351, 358 (6th
Cir.1989) (“[A] district court does not abuse its
discretion in denying a Rule 59 motion when it is premised on
evidence that the party had in his control prior to the
original entry of judgment.”)
Zazueta was confronted with the email he now disputes during
his testimony on September 29. (Show Cause Hr'g Tr. 47;
2-25.) The correspondence at issue was also at the center of
Defendant's Response to Plaintiff's Amended Motion to
Dismiss in August. (Doc. 12.) Contrary to the moving parties
assertions, they knew that the email was being used as
evidence of defense counsel's “prior experience
wherein Plaintiff dismissed its federal claim immediately
upon removal” because it was clearly stated in the
briefings. (Doc. 12 at 6.) Therefore, Advocates and its
counsel could have reasonably raised the argument regarding
the emails earlier in litigation and they did not. It is
inappropriate to do so now. Kona Enterprises, Inc.,
229 F.3d at 890.
attached no less than three new declarations in its Motion
introducing new facts in an attempt to contradict this
Court's finding of bad faith conduct in its earlier
order. Specifically, the new declarations claim that
Advocates voluntarily paid defendant's removal fees in
the past, “at the recommendation of Plaintiff's
counsel.” (Doc. 31 at 2.) Advocates knew it reimbursed
the defendant in Advocates for Individuals with
Disabilities, Incorporated v. Sun West Dental
Properties, No. CV-16-02416-PHX-JJT, long before the
Court ruled in this case and thus it may not introduce this
argument at this stage in the proceedings.
to the parties, Advocates voluntarily reimbursed a similarly
situated defendant five days prior to the September hearing.
(Doc. 31 at 3.) During the hearing, Mr. Strojnik was asked
“are you aware of any prior cases where [Advocates] had
agreed to reimburse defendants for the cost of removal when
[Advocates] immediately dismissed the federal claim?”
(Show Cause Hr'g Tr. at 42:2-6.) Mr. Strojnik stated that
“I don't recall. It could have happened. I
don't recall.” (Id.) Certainly the parties
were aware of the reimbursement at the time of the September