United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
August 14, 2019, the Court issued an order denying
Plaintiff's motion for summary judgment. Doc. 151.
Plaintiff has filed a motion for reconsideration, to which
Defendant has responded. Docs. 153, 160. Plaintiff has also
filed a motion for leave to file a reply. Doc. 161. The Court
will deny both motions.
for reconsideration are disfavored and should be granted only
in rare circumstances. See Stetter v. Blackpool, No.
CV 09-1071-PHX-DGC, 2009 WL 3348522, at *1 (D. Ariz. Oct. 15,
2009). A motion for reconsideration will be denied
“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.” LRCiv
7.2(g)(1); see also United Nat'l Ins. Co. v. Spectrum
Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). Mere
disagreement with an order is an insufficient basis for
reconsideration. See Ross v. Arpaio, No. CV
05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. 2008). Nor
should reconsideration be used to ask the Court to rethink
its analysis. Id.; see N.W. Acceptance
Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26
(9th Cir. 1988).
contends that the Court misconstrued the evidence regarding
his Title VII retaliation claim and committed manifest error
in holding that Kristin Lisson did not engage in protected
activity prior to his termination. Doc. 153 at 2. Plaintiff
reiterates evidence presented in his original motion and
provides new authority without explaining why it could not
have been brought to the Court's attention earlier. For
this reason, the Court will deny the motion. See
LRCiv 7.2(g)(1); Salt River Project Agric. Improvement
& Power Dist. v. Trench France SAS, No.
CV-17-01468-PHX-DGC, 2017 WL 6554860, at *1 (D. Ariz. Dec.
22, 2017) (“reconsideration will not be granted on the
basis of legal authority that could . . . have been brought
to the Court's attention earlier with reasonable
even considering this new authority, the result would remain
the same. The Court considered and rejected Plaintiff's
assertion that Lisson's opposition to Robert Donat's
advances rose to the level of protected activity under Title
VII. The Court reviewed the evidence cited by Plaintiff and
found that it either related to matters other than Title VII
harassment (allegations that Donat caused Lisson to have a
panic attack or that she was threatening her professional
reputation by associating with Plaintiff), or concerned
complaints of harassment made after Plaintiff was terminated.
Doc. 151 at 9-10. Plaintiff now stresses that Lisson rejected
Donat's romantic advances, and that such rejection can
amount to protected activity. But each of these alleged
rejections occurred in the context of Lisson ending her
romantic relationship with Donat in favor of a new
relationship with Plaintiff. In this context, Lisson's
alleged rejections would not have made Donat
“reasonably . . . aware that [she was] engaging in
protected activity.” Ekweani v. Ameriprise Fin.,
Inc., No. CV-08-01101-PHX-FJM, 2010 WL 481647, at *6 (D.
Ariz. Feb. 8, 2010) (citing Cohen v. Fred Meyer,
Inc., 686 F.2d 793, 796 (9th Cir. 1982)); see also
Quinones v. Potter, 661 F.Supp.2d 1105, 1126-27 (D.
Ariz. 2009) (citing Galdieri-Ambrosini v. Nat'l
Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir.
1998) for the proposition that “implicit in the
requirement that the employer have been aware of the
protected activity is the requirement that it understood or
could reasonably have understood, that the plaintiff's
opposition was directed at conduct prohibited by Title
next contends that the Court erred in interpreting the
transcript of Plaintiff's March 2 meeting with Jason
Walker and Tyler Mortenson. Plaintiff argues the Court erred
by finding that Plaintiff “was referring to the Vice
President, Elliot Batcheller, not Donat” at this
meeting. Doc. 151 at 8. Plaintiff is correct. But even with
the transcript referring to Donat as the primary culprit for
the hostile workplace, the result is the same. As the Court
explained in its previous order, “mere assertions of
hostility are insufficient to constitute protected activity
without alleging discrimination or harassment based on age,
race, sex, or another Title VII protected category.”
Doc. 151 at 8.
will the Court reconsider its conclusion that Plaintiff did
not engage in protected activity in his communications with
Mortenson prior to his termination. Doc. 151 at 7-8. The
Court rejected Plaintiff's arguments because his
complaints to Mortenson concerned compensation or his
relationship with Lisson, an invalid Title VII theory.
Id. at 4-5, 7. Plaintiff again reiterates arguments
made in his summary judgment brief, without indicating where
the Court erred. See Doc. 129 at 3-4. Motions for
reconsideration may not repeat arguments already made, and
mere disagreement with a court's order is insufficient
grounds for reconsideration. See LRCiv 7.2(g)(1)
(“No motion for reconsideration of an Order may repeat
any oral or written argument made”); see also
United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.
Ariz. 1998) (“A motion for reconsideration should not
be used to ask the court ‘to rethink what the court had
already thought through[.]'”).
also argues that because the Court found an issue of fact
regarding Donat's participation in his termination, there
must be an issue of fact relating to his Title VII claim as
well. This comparison is inapposite. Because neither Lisson
nor Plaintiff engaged in protected activity, there is no
Title VII claim, whether or not Donat was involved.
Plaintiff has filed a motion for leave to file a reply,
arguing that Defendant's reliance on new excerpts from
Lisson's deposition is inappropriate. Doc.
The Court has not relied on this evidence, and the motion for
leave to file a reply will therefore be denied.
Plaintiff's Request for Additional Discovery.
Court previously ruled on various discovery issues between
the parties, and stated that it would rule on the text
messages between Lisson and Donat after it resolved
Plaintiff's motion for reconsideration. Doc. 155. The
Court now addresses the parties' text message dispute.
case has a troubled discovery history. As Judge Humetewa
explained, the parties' discovery disagreements spanned
months and many filings with the Court. Doc. 134 at 1-3.
Judge Humetewa noted that Plaintiff's previous counsel
sought all discovery, including the texts Plaintiff now
seeks, through Defendant's voluntary disclosures under
the Court's MIDP pilot. She stated: “It has become
clear to the Court that Plaintiff is attempting to use the
rules of the MIDP to expand its intended purpose and to
reopen and expand the scope of discovery.” Id.
at 3. Defendant included the texts it believed to be relevant
in its MIDP disclosures, Plaintiff ...