United States District Court, D. Arizona
G. Campbell United States District Judge.
Court dismissed this case on November 15, 2016. Doc. 15.
Dismissal was based on Plaintiff's failure to comply with
the Court's orders and participate in a case management
conference. Plaintiff has now filed a motion for
reconsideration. Doc. 16. At the Court's request,
Defendant ME Capital LLC has filed a response. Doc. 18.
in this district have identified four circumstances where a
motion for reconsideration will be granted: (1) the moving
party has discovered material differences in fact or law from
those presented to the Court at the time of its initial
decision, and the party could not previously have known of
the factual or legal differences through the exercise of
reasonable diligence; (2) material factual events have
occurred since the Court's initial decision; (3) there
has been a material change in the law since the Court's
initial decision; or (4) the moving party makes a convincing
showing that the Court failed to consider material facts that
were presented to the Court at the time of its initial
decision. See, e.g., Motorola, Inc. v.
J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581,
586 (D. Ariz. 2003). Motions for reconsideration are
disfavored, and are not the place for parties to make new
arguments not raised in their original briefs. See
Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841
F.2d 918, 925-26 (9th Cir. 1988). Nor is it the time to ask
the Court to rethink what it has already thought. See
United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.
argues that reconsideration should be granted because his
failure to participate in the case management conference was
due to excusable neglect. Plaintiff asserts that he had not
yet served Defendants, he was seeking permission to serve
them by publication, and he “had no reason to believe
they would appear in this case or cooperate to file a joint
case management report.” Doc. 16 at 4-5. This plainly
is incorrect. Defense counsel attempted to contact Plaintiff
repeatedly, spoke with him by phone, and sent him letters,
including attempts to confer about the case management
counsel made two calls to Plaintiff on September 26, 2016.
Doc. 9 at 1. Plaintiff returned the calls on September 27,
but stated that he was uneasy discussing the case by phone.
Defense counsel suggested an in-person meeting at an
agreeable location, and Plaintiff said he wanted to think
about it and would call back in an hour. He never called.
Id. at 2.
counsel called Plaintiff again on October 3 and 4, leaving
messages both times. Plaintiff called back on October 4,
again declined to discuss the case by phone, and also
declined to meet in person. Id. Defense counsel
avows that Plaintiff said “[t]he Court cannot require
us to meet.” Doc. 18-1 at 3.
counsel wrote to Plaintiff on October 5 and included a copy
of the Court's order requiring the parties to confer in
advance of the case management conference and prepare a joint
report, and also requiring Plaintiff to initiate these
efforts. Doc. 18-1 at 7-12. The letter offered to meet at
defense counsel's office “or at any other location
that might be more convenient for you.” Id. at
7. The letter was also emailed to Plaintiff. Id. at
6. Defense counsel made several attempts to contact Plaintiff
after this letter, and finally spoke with him by phone on
October 20, 2016. Defense counsel explained that the
Court's order required the parties to meet and confer.
Plaintiff declined to meet or assist in preparing for the
case management conference. Defense counsel confirmed this
conversation in a letter that was mailed and emailed to
Plaintiff. Id. at 18-1 at 14-15.
addition to defense counsel's many efforts to
communicate, the Court advised Plaintiff of his need to
participate in the case management conference. The order
setting the conference was mailed to Plaintiff by the Clerk
on October 12, 2016 (Doc. 10, followed by Court-only entry),
and mailed again to Plaintiff by defense counsel (Doc. 18-1
at 7-12). The order was clear: “The parties are
directed to meet and confer at least 10 days before the Case
Management Conference.” Doc. 10 at 1. “[T]he
parties shall develop a joint Case Management Report which
contains the information called for in section B
below.” Id. “The parties shall jointly
file the Case Management Report with the Clerk not less than
seven days before the Case Management Conference.”
Id. at 4. “It is the responsibility of
Plaintiff(s) to initiate the Rule 26(f) meeting and
preparation of the joint Case Management Report.”
Id. “[A]ny party that is not represented by
counsel . . . shall appear and participate in the Case
Management Conference.” Id.
when Plaintiff failed to respond to a motion to dismiss filed
by Defendants on September 23, 2016, the Court entered an
order directing Plaintiff to file a response. Doc. 11. The
order specifically advised Plaintiff of his duty to become
familiar and comply with the relevant rules of procedure.
Id. at 1. The order also contained this warning:
“Plaintiff is further advised that if he fails to
prosecute this action, or if he fails to comply with the
rules or any Court order, the Court may dismiss the action
with prejudice pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure.” Id. at 2.
these communications, orders, and warnings, the Court simply
cannot accept Plaintiff's assertion that he “had no
reason to believe” he was required to cooperate in
preparing for the case management conference or to appear at
the conference. Plaintiff has not shown excusable neglect.
also argues that the Court could not exercise jurisdiction in
this case because Defendants had not been served. Doc. 16 at
5-6. But Plaintiff himself filed a notice stating that
service had occurred. Doc. 7. Even if Defendants had not been
served properly, they stated that they were appearing
specially and attempted to work with Plaintiff in preparing
for the case management conference. Parties can participate
in litigation without waiving their claim that the Court
lacks personal jurisdiction, provided they have raised that
issue appropriately and not forfeited it by subsequent
conduct. Fed.R.Civ.P. 12(h). ...