United States District Court, D. Arizona
ORDER
JAMES
A. TEILRORG SENIOR UNITED STATES DISTRICT JUDGE.
At
issue is Plaintiff David Kaufman's
(“Plaintiff”) Motion for Reconsideration of Order
Granting Motion for Summary Judgment (hereinafter,
“Motion” or “Motion for
Reconsideration”) (Doc. 88). Finding this matter
appropriate for decision without oral argument,
[1] the
Court now rules on this Motion.
I.
BACKGROUND
In an
Order dated September 12, 2018, the Court granted
Defendants' Motion for Summary Judgment, and,
Alternatively, Motion for Judgment on the Pleadings (Doc.
66). (Doc. 86). Accordingly, the Clerk of the Court entered
judgment in favor of Defendants on all claims and dismissed
the case with prejudice that same day. (Doc. 87).
On
September 26, 2018, fourteen days after the Court granted
summary judgment to Defendants, Plaintiff filed the Motion
for Reconsideration at issue. (Doc. 88). Should the Court
forgo granting his Motion, Plaintiff alternatively requests
that the Court “schedule an evidentiary hearing to
explore evidence concerning Plaintiff's search so that he
may produce evidence he was not allowed to provide in
response to arguments advanced in a reply document.”
(Doc. 88 at 7; see also Doc. 114 at 8).
Notably,
Plaintiff's Motion does not cite what Rule he moves
under. (See Doc. 88). In an Order dated October 31,
2018, the Court noted its hesitation “to guess which
Rule Plaintiff intended to move under because selecting which
Rule has significant consequences regarding when an appeal is
due[, ]”[2] and because “the various Rules have
different response obligations and governing legal
standards.”[3] (Doc. 110 at 1). Therefore, the Court did
not speculate as to which Rule Plaintiff intended to move
under and, instead, ordered Defendants to respond to
Plaintiff's Motion by November 13, 2018. (Id. at
1-2). In compliance with the Court's October 31, 2018
Order, Defendants filed their Response to Plaintiff's
Motion for Reconsideration of Order Granting Motion for
Summary Judgment (hereinafter, “Response”) (Doc.
112) on November 13, 2018. On November 21, 2018, Plaintiff
filed a Reply in support of his Motion. (Doc.
114).[4]
II.
ANALYSIS
In
response to the Court's observation that Plaintiff's
Motion fails to cite what Rule he moves under, Defendants
point out that District of Arizona Local Rule LRCiv 7.2(g)
(“LRCiv 7.2(g)”) does not apply because judgment
has been entered in this case in favor of Defendants on all
claims. (Doc. 112 at 2). For this reason, Defendants state
that Plaintiff's only recourse was to file a motion to
alter or amend the judgment under Fed.R.Civ.P. 59(e).
(Id.). Even so, Plaintiff insists in his Reply that
he intends his Motion as a motion for reconsideration under
LRCiv 7.2(g) rather than Rule 59. (Doc. 114 at 1-2). However,
LRCiv 7.2(g) governs motions for reconsideration of
interlocutory orders. See Motorola, Inc. v. J.B. Rodgers
Mech. Contractors, 215 F.R.D. 581, 582-83 (D. Ariz.
2003); see also Equal Employment Opportunity Comm'n
v. Gala AZ Holdings, Inc., No. CV 11-00383-PHX-JAT, 2012
WL 3704697, at *1 n.1 (D. Ariz. Aug. 28, 2012) (noting that
the Court applies the standard set forth in Motorola,
Inc. v. J.B. Rodgers Mech. Contractors to
non-appealable, interlocutory orders, but applies the
standard set forth in Rule 59 to appealable orders). Here,
Plaintiff seeks reconsideration of an order granting summary
judgment to Defendants after the entry of final judgment in
favor of Defendants on all claims. (See Docs.
86-87). As the Court's Order of September 12, 2018
“end[ed] the litigation on the merits and [left]
nothing for the court to do but execute the judgment, ”
it was a final judgment or appealable order-not an
interlocutory 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)).
Accordingly, LRCiv 7.2(g)-and its corresponding analysis
under Motorola, Inc. v. J.B. Rodgers Mech.
Contractors[5]-does not apply.
Although
Plaintiff never indicated which Federal Rule of Civil
Procedure governed his motion, “a motion for
reconsideration of summary judgment is appropriately brought
under either Rule 59(e) or Rule 60(b).” Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)
(holding motion for reconsideration brought pursuant to local
rules may be treated as one brought pursuant to Rule 59(e) or
Rule 60(b)); see also Motorola, Inc., 215 F.R.D. at
582 n.1 (noting that Fed.R.Civ.P. 59(e) and 60(b) apply to
reconsideration of “final judgments and appealable
interlocutory orders”) (quoting Balla v. Idaho
State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir.
1989)). Because Plaintiff seeks an order altering or amending
the Judgment in this case and the Motion was filed within 28
days of the entry of Judgment, the Court will construe
Plaintiff's Motion as having been brought pursuant to
Rule 59(e). Shaka v. Ryan, No. CV 15-0050-PHX-SMM,
2015 WL 4162598, at *1 (D. Ariz. July 9, 2015); see also
Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist.
No. 69, 374 F.3d 857, 863 (9th Cir. 2004) (“[A]
timely filed motion for reconsideration under a local rule is
construed as a motion to alter or amend a judgment under Rule
59(e).”) (citing Schroeder v. McDonald, 55
F.3d 454, 459 (9th Cir. 1995)).
“Although
Rule 59(e) permits a district court to reconsider and amend a
previous order, the rule offers an ‘extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.'” Kona
Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000) (quoting 12 James W. Moore et al.,
MOORE's FEDERAL PRACTICE, § 59.30[4]). A district
court has considerable discretion to grant a Rule 59(e)
motion to alter or amend judgment if: “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. Co., 338 F.3d
1058, 1063 (9th Cir. 2003) (internal citations omitted)
(citing McDowell v. Calderon, 197 F.3d 1253, 1255
n.1 (9th Cir. 1999) (en banc)). However, a motion for
reconsideration should not “be used to ask the court to
rethink what the court had already thought through-rightly or
wrongly.” Smith v. Ryan, No. CV
12-318-PHX-PGR, 2014 WL 2452893, at *1 (D. Ariz. June 2,
2014) (citing United States v. Rezzonico, 32
F.Supp.2d 1112, 1116 (D. Ariz. 1998)). Further, a Rule 59(e)
motion “may not be used to relitigate old matters, or
to raise arguments or present evidence that could have been
made prior to the entry of judgment.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008).
In his
Motion for Reconsideration, Plaintiff does not come forward
with any “newly discovered or previously unavailable
evidence, ” contend that reconsideration of the
Court's Order granting summary judgment is necessary to
“prevent manifest injustice, ” or argue that
there is an “intervening change in controlling
law.” Turner, 338 F.3d at 1063. Rather,
Plaintiff claims that the Court's Order (Doc. 86) was
manifestly erroneous because “the Court disposed of the
case based on a factual argument raised in a surreply to
which Plaintiff had no opportunity to respond, ” and
because “sufficient evidence of a diligent search
exists throughout the record” such that Plaintiff
should have been permitted to introduce secondary evidence of
the contract under Fed.R.Evid. 1004. (Doc. 88 at 1,
4).[6]For the reasons that follow, however, the
Court finds that Plaintiff is unable to demonstrate that
reconsideration of the Court's Order granting summary
judgment to Defendants is “necessary to correct
manifest errors of law or fact upon which the judgment is
based.” Turner, 338 F.3d at 1063. As Plaintiff
is unable to meet the requisite standard to alter or amend
the judgment under Rule 59(e), the Court will deny
Plaintiff's Motion.[7]
A.
Whether the Court's Order was “Manifestly
Erroneous” Because Plaintiff Had “No Opportunity
to Respond”
Plaintiff's
first ground for seeking reconsideration-that “the
Court disposed of the case based on a factual argument raised
in a surreply to which Plaintiff had no opportunity to
respond”-is untrue. (Doc. 88 at 1). Particularly,
Plaintiff claims that Defendants “did not raise the
factual issue of a diligent search until its sur-surreply
filed after Plaintiff's surreply[, ]” so he
“had no opportunity to present evidence to support the
diligence of Plaintiff's search or testimony of a
custodian of record relating to any search he
performed.” (Id. at 3).[8] However, even if
Defendants' Sur-Sureply was the first time Defendants
explicitly argued that Plaintiff failed to
demonstrate that he engaged in a diligent search for the
original alleged Merchandising Contract, (Doc. 83 at 8-9),
Plaintiff was on notice that he needed to make such a showing
long before.
In
their Motion for Summary Judgment, Defendants repeatedly
asserted that no admissible evidence of the alleged
Merchandising Contract existed. (See, e.g., Doc. 66
at 2 (“Because there is no admissible evidence that
the alleged Merchandising Contract exists, and even if
it did exist Plaintiff's claims would necessarily be
barred by laches, or by the statute of limitations, this case
is ripe for summary judgment.”) (emphasis added)
(footnote omitted); see also Id. at 9
(“[T]here is no evidence that the alleged Merchandising
Contract exists.)). In fact, Defendants devoted approximately
two pages of their Motion for Summary Judgment to the
argument that Plaintiff could not establish the existence of
the Merchandising Contract or its terms. (See Id. at
4-6). Defendants' motion clearly put Plaintiff on notice
that he would need to prove the existence and content of the
Merchandising Contract to survive summary judgment on his
breach of contract and breach of the covenant of good faith
and fair dealing claims. (See id.). At this point,
Plaintiff should have been aware that the best evidence rule
was at play, as Plaintiff was on notice that he needed to
prove the content of the Merchandising Contract to establish
his claims. According to the best evidence rule, “[a]n
original writing . . . is required in order to prove its
content unless these rules or a federal statute provides
otherwise.” Fed.R.Evid. 1002.
In his
Response to Defendants' Motion for Summary Judgment,
Plaintiff did not dispute that proving the existence and
terms of the Merchandising Contract was a necessary element
of his claims. (See Doc. 72). Rather than produce
the original contract, Plaintiff argued in his Response that
he “has documentary and testimonial evidence to
demonstrate the merchandising contract's existence and
terms[, ]” including “several contemporary
documents refer[ing] to the existence of the contract,
” and testimony from Michael Gale Black
(“Black”) and Richard Korkes. (Doc. 72 at 5-7).
Plaintiff even admits in his Motion for Reconsideration that
he “responded that secondary evidence concerning the
contract was abundant in contemporaneously created documents
and that a live witness had reviewed the contract and
remembered the critical terms.” (Doc. 88 at 2;
see Doc. 72 at 5- 7). ...