United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion for Order
Reinstating Counts Four and Six (Doc. 90). For the reasons
set forth below, the Court denies Plaintiff's Motion.
Order dated October 9, 2018, the Court ruled on
Defendant's Motion for Summary Judgment (Doc. 67) and
Plaintiff's Motion for Partial Summary Judgment (Doc.
70). (Doc. 86 at 53). As relevant here, the Court's Order
granted Defendant's Motion for Summary Judgment, in part,
as to Plaintiff's Fourth Cause of Action alleging
disability discrimination under the Americans with
Disabilities Act (“ADA”), and as to
Plaintiff's Sixth Cause of Action alleging disability
discrimination under the Rehabilitation Act. (Id.).
On November 6, 2018, Plaintiff filed a Motion for Order
Reinstating Counts Four and Six (Doc. 90) (hereinafter
“Motion”) asking the Court to modify its prior
Order (Doc. 86) pursuant to Federal Rules of Civil Procedure
54(b) and 60(b)(1) by reinstating Plaintiff's disability
discrimination claims under the ADA and the Rehabilitation
Act. (Doc. 90 at 1). Particularly, Plaintiff seeks relief
from the Court's Order (Doc. 86) because it
“overlooked or ignored crucial evidence presented by
[Plaintiff] that would have supported a finding that
[Defendant] had notice of her disability under circumstances
that created a duty to engage in the interactive
process[.]” (Doc. 90 at 2).
the Court did not order Defendant to do so, Defendant filed a
Response to Plaintiff's Motion for Order Reinstating
Counts Four and Six (Doc. 92) (hereinafter
“Response”) on November 19, 2018. Defendant asks
the Court to award its attorneys' fees incurred in
preparing its Response (Doc. 92) “based on the lack of
merit to Plaintiff's position and her end run around
LR[Civ] 7.2.” (Doc. 92 at 8). On November 26, 2018,
Plaintiff filed a Reply in Support of Motion for Order
Reinstating Counts Four and Six (Doc. 93) (hereinafter
“Reply”). The Court also did not order Plaintiff
to file a Reply.
preliminary matter, the Court notes that Plaintiff titled the
motion at issue, (Doc. 90), as “Motion for Order
Reinstating Counts Four and Six.” However, neither the
Federal Rules of Civil Procedure nor the District of
Arizona's Local Rules provide for the filing of
“motions to reinstate.” Although improperly
titled, the Court construes Plaintiff's Motion for Order
Reinstating Counts Four and Six as a motion for
reconsideration under District of Arizona Local Rule LRCiv
7.2(g) (“LRCiv 7.2(g)”).
cites Federal Rules of Civil Procedure 54(b) and 60(b)(1) as
purported authority for her Motion. (Doc. 90 at 2-5).
Plaintiff errs in seeking relief under Fed.R.Civ.P. 60(b)(1),
which provides that “the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding” upon a showing of “mistake, surprise,
or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
Importantly, however, that Rule only provides relief
“from a final judgment, order, or
proceeding.” Id. (emphasis added). As the
Court's Order of October 9, 2018 did not “end[ ]
the litigation on the merits and leave[ ] nothing for the
court to do but execute the judgment, ” it was not a
final judgment or appealable order. In re Frontier
Properties, Inc., 979 F.2d 1358, 1362 (9th Cir. 1992)
(citing Catlin v. United States, 324 U.S. 229, 233
(1945)). Rather, “[i]t is axiomatic that orders
granting partial summary judgment, because they do not
dispose of all claims, are not final appealable
orders[.]” Cheng v. Comm'r, 878 F.2d 306,
309 (9th Cir. 1989) (citations omitted). Therefore, it is
clear that Rule 60(b) does not apply here. Accordingly, to
the extent that Plaintiff's Motion seeks relief from the
Court's October 9, 2018 Order under Rule 60(b)(1), her
Motion is denied.
also cites Fed.R.Civ.P. 54(b) as authority for her Motion,
(Doc. 90 at 2), which states, in part:
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). It is true that courts “have
inherent power to modify their interlocutory orders before
entering a final judgment.” Balla v. Idaho State
Bd. of Corr., 869 F.2d 461, 465 (9th Cir. 1989) (citing
Marconi Wireless Telegraph Co. v. United States, 320
U.S. 1, 47-48 (1943); John Simmons Co. v. Grier Brothers
Co., 258 U.S. 82, 88 (1922)); see also Dietz v.
Bouldin, 136 S.Ct. 1885, 1892 (2016) (“[A]
district court ordinarily has the power to modify or rescind
its orders at any point prior to final judgment in a civil
case.”) (citations omitted). However, as recognized in
various cases cited by Plaintiff,  Rule 54(b) relates to
motions for reconsideration-for which the Court has its own
legal standard. Specifically, as noted in the Rule 16
Scheduling Order (Doc. 16), “should a party choose to
file a motion for reconsideration of an interlocutory order,
such party shall file such motion under the standard set
forth in Motorola, Inc. v. J.B. Rogers Mechanical
Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz.
2003).” (Doc. 16 n. 4). Despite the Court's
admonition, Plaintiff failed to use this correct legal
standard in her Motion. This failure is one of multiple
reasons why the Court declines to grant Plaintiff's
The Court's Standard for Motions for
Court has the authority to reconsider a prior order.
Motorola, Inc., 215 F.R.D. at 582 (citing Barber
v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994);
United States v. Nutri-cology, Inc., 982 F.2d 394,
396 (9th Cir. 1992)). Motions for reconsideration, however,
are disfavored and are not the proper means for parties to
raise new arguments not stated in their past briefs.
Id. (citing Northwest Acceptance Corp. v.
Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir.
1988)). Reconsideration is also not an appropriate means to
ask the Court to merely rethink a question it has already
decided without an acceptable reason to do so. Id.
(citing United States v. Rezzonico, 32 F.Supp.2d
1112, 1116 (D.Ariz. 1998)). Furthermore,
“dissatisfaction or disagreement is not a proper basis
for reconsideration[.]” Ellsworth v. Prison Health
Services Inc., 2013 WL 1149937, at *2 (D.Ariz. March 20,
2013) (internal quotation marks and citations omitted).
7.2(g) provides, in part, that “[t]he Court will
ordinarily deny a motion for reconsideration of an Order
absent a showing of manifest error or a showing of new facts
or legal authority that could not have been brought to its
attention earlier with reasonable diligence.” A motion
for reconsideration “shall point out with specificity
the matters that the movant believes were overlooked or
misapprehended by the Court, any new matters being brought to
the Court's attention for the first time and the reasons
they were not presented earlier, and any specific
modifications being sought in the Court's Order.”
Court has adopted the following standards upon which a motion
for reconsideration of an interlocutory order will be
(1) There are material differences in fact or law from that
presented to the Court and, at the time of the Court's
decision, the party moving for reconsideration could not have
known of the factual or legal differences through reasonable
(2) There are new material facts that happened after
the Court's decision;
(3) There has been a change in the law that was decided or
enacted after the Court's decision; or
(4) The movant makes a convincing showing that the Court
failed to consider material facts that were presented to the
Court before the Court's decision.
Motorola, Inc., 215 F.R.D. at 586. Although
Plaintiff contends that the “choice of which Rule(s) to
proceed under was for Marquez and her counsel, not GUHSD[,
]” (Doc. 93 at 2), Plaintiff's failure to abide by
the Court's Local Rules or follow the Court's Rule 16
Scheduling Order (Doc. 16) setting forth the Motorola,
Inc. standard is to her own detriment.