United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
before the Court are Defendant Swiss-America Trading
Corporation's (“Defendant”) motion for
attorney fees and nontaxable costs (Doc. 54) and motion for
sanctions (Doc. 55). Also pending before the Court is
Plaintiff Serguei Silaev's (“Plaintiff”)
motion to alter or amend the judgment (Doc. 58). The Court
now rules on the motions.
facts of this case are explained in detail in this
Court's order granting summary judgment (Doc. 50 at 2-3),
and it will not recite them here. It is sufficient to note
that Plaintiff filed suit against Defendant, a dealer of
numismatic and precious metal coins, after Plaintiff's
investment in coins proved unsuccessful. Plaintiff alleged
that Defendant committed fraud, breach of contract, negligent
misrepresentation, and breach of warranty involving several
sales of coin-based investments. (Doc. 23 at 2).
moved for summary judgment, which this Court granted in
Defendant's favor. (Doc. 50 at 18). In its order, this
Court explained that Plaintiff's response to
Defendant's summary judgment motion was insufficient and
failed to comply with the local rules governing summary
judgment filings. (Doc. 50 at 5). Plaintiff filed no
controverting statement of facts as required by Local Rule of
Civil Procedure 56.1(b), and his opposition to
Defendant's motion was unsupported by legal authority.
(Doc. 50 at 5-6). This Court nevertheless expanded its
analysis on summary judgment to consider the affidavit and
deposition testimony provided by Plaintiff. Even in so doing,
Plaintiff was unable to provide enough factual support for
his claims to survive summary judgment. (Doc. 50 at 13-16).
The Court found that Plaintiff had not proven the existence
of a genuine issue of material fact, and granted judgment in
favor of Defendant. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
then filed a motion for attorney fees (Doc. 54) and a motion
for sanctions against Plaintiff (Doc. 55), and Plaintiff
filed a motion requesting this Court alter or amend the its
summary judgment order under Rule 59 (Doc. 58).
Motion to Alter or Amend the Judgment
the Court considers Plaintiff's motion under Federal Rule
of Civil Procedure (“Rule”) 59, asking the Court
to vacate the summary judgment ruling on Plaintiff's
claims for fraud and negligent
misrepresentation. (Doc. 58). This Court may grant a Rule 59
motion if (1) it is “presented with newly discovered
evidence, ” (2) it “committed clear error or the
initial decision was manifestly unjust, ” or (3) there
has been “an intervening change in controlling
law.” School Dist. No. 1J, Multnomah Cnty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Rule 59
relief is an “extraordinary remedy, ” and should
be granted only when the Court is left with a firm conviction
that a mistake was made. Kona Enter., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Smith v.
Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir.
asserts that newly discovered evidence should compel this
Court to conclude it was error to grant judgment in
Defendant's favor. (Doc. 58 at 3). The
“evidence” on which Plaintiff's motion relies
includes a formal declaration of counsel and Plaintiff's
May 24, 2016 affidavit. (Doc. 58 at 4). Neither of these
documents, however, contains newly discovered evidence.
First, the declaration of counsel is not evidence at all; it
is merely an explanation as to why Plaintiff's counsel
failed to comply with Local Rule 56.1 and a list of reasons
why this Court should now accept his untimely attempt at
filing a controverting statement of facts. See L.R.
Civ. P. 56.1(b). (Doc. 58-2; see also Doc. 50 at
5-7). Second, Plaintiff's affidavit is not newly
discovered. Despite counsel's prior failure to properly
file a controverting statement of facts, this Court
independently expanded its summary judgment analysis to
include evidence contained in the May 24, 2016
affidavit. (See Doc. 50 at 6-7, 9, 10, 12,
14). Plaintiff's motion is therefore unsupported by any
newly discovered (or previously unconsidered) evidence.
Plaintiff's motion advances no cognizable legal argument
as to why the Court's summary judgment ruling was error.
Each of Plaintiff's objections to Defendant's
statements is based on a contrary statement Plaintiff made in
either his affidavit or his deposition. But as noted above,
this Court already considered Plaintiff's statements in
its ruling on summary judgment. Rule 59 motions may not be
used to raise arguments already made, or to present arguments
that could have been made at an earlier stage in the
litigation. Kona Enter., 229 F.3d at 890.
Accordingly, Plaintiff's motion fails because it advances
no new legal argument, but merely repeats the arguments made
in Plaintiff's response in opposition to summary judgment
- arguments this Court has already considered and rejected.
(See Doc. 50).
Motions for Sanctions and Attorneys' Fees
Court's order granting summary judgment directed
Defendant to file a motion to recover fees and costs under
whatever theory Defendant deemed appropriate. (See
Doc. 50 at 18). In compliance with that directive, Defendant
filed a timely motion for attorney's fees and non-taxable
expenses (Doc. 54) and a motion for sanctions (Doc. 55).
Rule 11 Sanctions
the Court turns to Defendant's motion for attorneys'
fees sanctions against Plaintiff's counsel
(“Counsel”) for violating Rule 11 of the Federal
Rules of Civil Procedure. Sanctions are justified under Rule
11 “when a filing is frivolous, legally unreasonable,
or without factual foundation, or brought for an improper
purpose.” Estate of Blue v. Cnty. of L.A., 120
F.3d 982, 985 (9th Cir. 1997). A filing is frivolous if it is
“both baseless and made without a reasonable and
competent inquiry.” Townsend v. Holman Consulting
Corp., 929 F.2d 1358, 1362 (9th Cir. 1990). The purpose
of Rule 11 is to promote judicial economy by ...