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

Filing 93

ORDER, Plaintiff Steve Thomas shall have until 5/22/12 to respond to Wells Fargo Bank's 92 MOTION for Reconsideration. Signed by Judge G Murray Snow on 5/8/12. (REW)

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). Pending before the

18
Court is Defendant Wells Fargo’s Motion for Reconsideration of the April 2 Order. (Doc.
19
92). For the reasons discussed below, Plaintiff is ordered to respond to the Motion for
20
Reconsideration.
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 first contends that Plaintiff has not adequately established the damages

4

element of his claims. (Doc. 92 at 6–9). To be sure, Plaintiff has failed to establish a genuine

5

issue for most of his damages theories. He has not, for instance, submitted evidence to

6

support his claim that absent Wells Fargo’s misapplication of the escrowed funds he would

7

have been entitled to a tax deduction, or that he was damaged by having to pay interest on

8

the escrowed funds or the Second Loan. Nor has he established a genuine issue that he is

9

entitled to unjust enrichment or improper deficiency damages. The only damages theory

10

which Plaintiff may have preserved is his “loss of personal liquidity” damages theory. (See

11

Doc. 54 at 5).

12

To succeed on this loss of personal liquidity theory at trial, Plaintiff must establish,

13

among other things, a causal link between Wells Fargo’s breach of the Escrow Agreement

14

and Plaintiff’s alleged loss of liquidity. Plaintiff must therefore identify admissible evidence

15

that he completed a portion of the agreed-upon improvements.

16

The only evidence cited by Plaintiff thus far of the completion of improvements is

17

Exhibit “M.” (See Doc. 85 at 4). Exhibit M, however, is a summary of evidence; it does not,

18

itself, constitute admissible evidence. (See Doc. 85 at 13). It appears that there may be other

19

evidence in the record regarding the completion of some of the improvements. (See, e.g.,

20

Doc. 58, Ex. A). Plaintiff does not cite to such evidence in his Response, however, nor has

21

he demonstrated that such evidence is admissible. The Court, therefore, orders Plaintiff to

22

respond to Defendant’s Motion for Reconsideration to identify admissible evidence in the

23

record which he will use to establish his completion of improvements at trial.2

24
25
26
27
28

2

In accordance with the Court’s August 17, 2011 Sanctions Order, the evidence
identified by Plaintiff must be evidence of one or more of the improvements summarized in
Exhibit “M.” (See Doc. 59 at 1). Should Plaintiff identify evidence of improvements which
were not summarized by Exhibit “M,” such evidence is not admissible at trial and therefore
will not suffice to establish a genuine issue. (See id.).
-2-

1

The remaining arguments in Wells Fargo’s motion are essentially requests that the

2

Court “rethink what [it] has already thought through.” Above the Belt, Inc. 99 F.R.D. at 101.

3

Wells Fargo has not identified newly discovered evidence, clear error, manifest injustice, or

4

a change in controlling law with respect to these arguments. See id. Accordingly, the only

5

argument to which Plaintiff need respond is Defendant’s damages argument, as detailed

6

above.

7

IT IS THEREFORE ORDERED that Plaintiff Steve Thomas shall have until May

8

22, 2012, to respond to Wells Fargo Bank, N.A.’s Motion for Reconsideration (Doc. 92).

9

Plaintiff’s Response should be limited to 10 pages, not including any exhibits which Plaintiff

10
11

may wish to attach to the Response.
DATED this 8th day of May, 2012.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-