United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
issue is Plaintiffs' Motion to Alter or Amend the
Judgment (Doc. 158 (unsealed); Doc. 161 (sealed), Mot.),
which the Court treats as a Motion for Reconsideration.
Plaintiffs ask the Court to reconsider its January 15, 2019
Order (Doc. 153) granting summary judgment in favor of
Defendant. The Court's Order came after the Ninth
Circuit's decision in Zabriskie v. Federal National
Mortgage Association, 912 F.3d 1192 (9th Cir. 2019),
which-contrary to Plaintiffs' argument-is controlling in
Court has discretion to reconsider and vacate a prior order.
Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.
1994). Motions for reconsideration are generally disfavored,
however, and should be granted only in rare circumstances.
See Ross v. Arpaio, No. CV 05-4177-PHX-MHM (ECV),
2008 WL 1776502, at *2 (D. Ariz. Apr. 15, 2008) (citing
Defenders of Wildlife v. Browner, 909 F.Supp. 1342,
1351 (D. Ariz. 1995)). Disagreement with an order is an
insufficient basis for reconsideration. See Id.
(citing Leong v. Hilton Hotels Corp., 689 F.Supp.
1572, 1573 (D. Haw. 1988)). Further, “[a] motion for
reconsideration is not an appropriate time to raise new legal
arguments.” Schurz v. Schriro, No.
CV-97-580-PHX-EHC, 2006 WL 89933, at *20 (D. Ariz. Jan. 11,
2006). Reconsideration is only appropriate if: (1) the court
is presented with newly discovered, previously unavailable
evidence; (2) the court committed a clear error of law and
the initial decision was manifestly unjust; or (3) there has
been an intervening change in controlling law. Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. AC and S, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993).
argue that the Court committed manifest errors of law in its
January 15, 2019 Order. (Mot. at 4.) In that Order, the Court
acknowledged the Ninth Circuit's ruling that Defendant is
not a credit reporting agency (“CRA”) and
therefore is not subject to the Federal Credit Reporting Act
(“FCRA”). (Doc. 153.) As the Court reads that
case, Defendant does not somehow become a CRA when lenders
use its automated underwriting system known as Desktop
Underwriter (“DU”). And that factual scenario is
the same one that Plaintiffs present to the Court now.
Plaintiffs argue that the evidence in this case is
meaningfully different and more dispositive than the evidence
presented in Zabriskie, therefore requiring the
Court to deny Defendant's Motion for Summary Judgment.
(Mot. at 7-12.) Plaintiffs further argue that the Court
failed to view the evidence in the light most favorable to
Plaintiffs, who were the non-moving party. (Mot. at 13-15.)
Both arguments fail in the face of the Ninth Circuit's
decision and its application to this case.
it is true that Plaintiffs provided evidence apparently not
present in the record in Zabriskie, none of it
convinces the Court that there is a genuine dispute of
material fact about whether Defendant is a CRA. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
(requiring a court to grant summary judgment “if the
movant shows that there is no genuine dispute as to any
material fact.”). Rather, the Ninth Circuit's
holding, reached under nearly identical factual circumstances
as the case before the Court today, precludes the argument
that Defendant is a CRA. The additional evidence in
Plaintiffs' case, “including factual admissions by
high level Fannie Mae employees regarding its assembly and
evaluation of consumer information, ” does not change
the fact that, as a matter of law, the Ninth Circuit defined
Defendant's role as “merely provid[ing] software
that allows lenders to assemble or evaluate” consumer
information. Zabriskie, 912 F.3d at 1196. The
subjective beliefs of Defendant's employees go only to
the question of whether Defendant violated the FCRA willfully
or negligently. And because the Ninth Circuit held that
Defendant is not a CRA and therefore is not subject to the
FCRA, the Court never reaches the issue of whether any
alleged violation was willful or negligent.
go on to explain the differences between DU and the process
“undertaken by a lender which chooses to manually
underwrite a loan according to the rules set forth in the
Selling Guide.” (Mot. at 10.) But this distinction is
immaterial because in Zabriskie, the Ninth Circuit
addressed lenders who use the DU software-not those who
choose to manually underwrite using the Selling Guide.
Zabriskie, 912 F.3d at 1196 (“a number of
lenders used DU to ascertain whether a loan to [the
Zabriskies] would be eligible for purchase by Fannie
Mae.”). Thus, the Court is unsure what Plaintiffs hope
to prove by again explaining the difference between the two
processes when both cases deal with lenders' use of DU.
construing the evidence in the light most favorable to
Plaintiffs, the Court is bound by the Ninth Circuit's
precedent. As explained above, most of Plaintiffs'
evidence speaks to whether or not Defendant could have
violated the FCRA willfully or negligently. Given the clear
precedent set by the Ninth Circuit, any dispute about a
violation of the FCRA is moot because, as a matter of law,
Defendant is not a CRA in this instance.
have failed to show that the Court committed manifest error
in its January 15, 2019 Order. Thus, the Court will deny
Plaintiffs' Motion for Reconsideration.
IS THEREFORE ORDERED denying Plaintiffs' Motion
to Alter or Amend the Judgment (Docs. ...