Thomas v. Wells Fargo Bank, National Association, et al.

Filing 101

ORDER granting 99 Wells Fargo's Motion for Leave to File Reply in Support of its Motion for Reconsideration and denying 92 Wells Fargo Bank, N.A.'s Motion for Reconsideration. Signed by Judge G Murray Snow on 7/26/12.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) ) Wells Fargo Bank, National Association) dba Wells Fargo Home Mortgage, et al., ) ) ) Defendants. ) Steve G. Thomas, No. CV-10-901-PHX-GMS ORDER 15 16 On April 2, 2012, the Court issued an Order granting in part and denying in part 17 Defendant Wells Fargo’s Motion for Summary Judgment.1 (Doc. 90). On April 16, 2012 18 Defendant moved for reconsideration of the April 2 Order. (Doc. 92). On May 8, 2012, the 19 Court directed Plaintiff Steve Thomas to respond to Well Fargo’s motion. (Doc. 93). For the 20 reasons discussed below, the motion for reconsideration is denied. 21 Generally, motions to reconsider are appropriate only if the Court “(1) is presented 22 with newly discovered evidence, (2) committed clear error or the initial decision was 23 manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. 24 No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A 25 motion for reconsideration should not be used to ask a court “to rethink what the court had 26 27 1 28 The facts and background pertaining to this action are set out in much greater detail in the Court’s April 2 Order. (Doc. 90). 1 already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel Bohannon Roofing, 2 Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983). 3 Wells Fargo contends that Plaintiff has not adequately established the damages 4 element of his claims. (Doc. 92 at 6–9). Plaintiff has, indeed, failed to establish a genuine 5 issue of material fact for most of his damages theories. (See Doc. 93). He has not, for 6 instance, submitted evidence to support his claim that absent Wells Fargo’s misapplication 7 of the escrowed funds he would have been entitled to a tax deduction, or that he was 8 damaged by having to pay interest on the escrowed funds or the Second Loan. Nor has he 9 established a genuine issue that he is entitled to unjust enrichment or improper deficiency 10 damages. He may not, therefore, advance these damages theories at trial. Plaintiff has, 11 however, established a genuine issue of fact as to his “loss of personal liquidity” damages 12 theory. (Doc. 54 at 5). 13 To succeed on this loss of personal liquidity theory at trial, Plaintiff must establish, 14 among other things, a causal link between Wells Fargo’s breach of the Escrow Agreement 15 and Plaintiff’s alleged loss of liquidity. Plaintiff must therefore identify admissible evidence 16 that he completed a portion of the agreed-upon improvements. In his opposition to 17 Defendant’s motion for summary judgment, Plaintiff identified Exhibit “M” as the evidence 18 of his completion of these improvements. (See Doc. 85 at 4). As noted by Wells Fargo in its 19 motion for reconsideration, Exhibit M is a summary of evidence and does not, itself, 20 constitute admissible evidence. (See Doc. 85 at 13). In directing Plaintiff to respond to 21 Defendant’s motion for reconsideration, the Court therefore instructed him to identify 22 admissible evidence in the record which demonstrated his completion of the improvements. 23 (Doc. 93). 24 On June 8, 2012, Plaintiff responded to Wells Fargo’s motion for reconsideration. 25 (Doc. 98). As part of his response, he attaches multiple invoices which he contends document 26 many of the expenses he incurred in completing the improvements. (Doc. 98, Ex. 1). Many 27 of these invoices were part of the record prior to the time when Wells Fargo moved for 28 summary judgment. (See Doc. 58, Ex. A). A reasonable fact finder could determine, given -2- 1 these invoices and Plaintiff’s likely testimony in relation thereto, that Plaintiff completed at 2 least a portion of the agreed upon improvements. Plaintiff has therefore established a genuine 3 issue of fact for trial. 4 Wells Fargo contends that these invoices are inadmissible. It contends that some of 5 the invoices were not produced by Plaintiff during the course of discovery despite Wells 6 Fargo’s requests for such documents. (Doc. 100). It further contends that other invoices are 7 either irrelevant or lack foundation and are unauthenticated. (Id.). 8 To be sure, to the extent the Court determines that an invoice was not produced by 9 Plaintiff upon a Wells Fargo discovery request, the Court is not likely to admit such evidence 10 at trial. Wells Fargo does not object on lack of production grounds, however, to many of the 11 invoices, arguing only that these invoices are irrelevant, lack foundation, and/or are 12 unauthenticated. (See Doc. 100). Having reviewed the invoices, the Court finds that many 13 of them are relevant to the question of whether Plaintiff completed the improvements. (See 14 Doc. 98, Ex. 1). In regards to Wells Fargo’s authentication and foundation challenges, 15 Federal Rule of Evidence 901 states that “[t]o satisfy the requirement of authenticating or 16 identifying an item of evidence, the proponent must produce evidence sufficient to support 17 a finding that the item is what the proponent claims it is.” The Rule further states that a 18 document can be authenticated based on the “appearance, contents, substance, internal 19 patterns, or other distinctive characteristics of the item.” FED. R. EVID. 901(4). The 20 distinctive characteristics of many of Plaintiff’s proffered invoices, such as the official 21 letterhead on which they are printed and the logos which they contain, are sufficient to 22 support a finding that these invoices are what Plaintiff claims they are. (See Doc. 98, Ex. 1). 23 The remaining arguments in Wells Fargo’s motion are essentially requests that the 24 Court “rethink what [it] has already thought through.” Above the Belt, Inc. 99 F.R.D. at 101. 25 Wells Fargo has not identified newly discovered evidence, clear error, manifest injustice, or 26 a change in controlling law with respect to these arguments. See id. 27 28 IT IS THEREFORE ORDERED that Wells Fargo’s Motion for Leave to Reply in -3- 1 2 3 4 Support of its Motion for Reconsideration (Doc. 99) is GRANTED. IT IS FURTHER ORDERED that Wells Fargo Bank, N.A.’s Motion for Reconsideration (Doc. 92) is DENIED. DATED this 26th day of July, 2012. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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