Breeser, et al. v. Menta Group Incorporated NFP, et al.

Filing 97

ORDER denying 94 Plaintiffs' Motion to Alter or Amend Judgment. Signed by Senior Judge James A Teilborg on 6/24/2013.(TLB)

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Case No. CV 10-1592-PHX-JAT

Laura Breeser; et al.,

ORDER

Plaintiffs,

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v.

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The Menta Group, Inc., NFP; et al.,
Defendants.

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Pending before the Court is Plaintiffs’ Motion (the “Motion”) under Federal Rule of

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Civil Procedure 59, to alter or amend the judgment. (Doc. 94). Defendant1 has filed a

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Response to Plaintiffs’ Motion (Doc. 95) and Plaintiffs have filed a Reply to Defendant’s

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Response. (Doc. 96). The Court has considered the parties’ pleadings and now rules on the

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Motion.

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I.

BACKGROUND

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This suit arises out of the termination of Plaintiff Laura Breeser’s (“Breeser”)

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employment by Defendant Special Education Services (“SES”). Breeser worked for SES for

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The Defendant in this case is essentially only Special Education Services (“SES”).
Defendant The Menta Group, Inc, NFP (“The Menta Group”) is a not-for-profit organization
that is the marketing vehicle for the schools affiliated with SES and Plaintiffs admit that The
Menta Group has never employed Breeser. (Doc. 74 at 3); (Doc. 81 at 11). The Court also
dismissed all of the individual Defendants in this case, leaving only The Menta Group, SES,
John and Jane Does I-X, and Black and White Corporations I-X as the remaining Defendants
when summary judgment was granted. (Doc. 38 at 15).
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approximately twenty-nine years before SES terminated her employment. The position

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Breeser was terminated from was Principal of the Southwest Education Center (“SWEC”) in

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Phoenix, Arizona.

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The undisputed facts show that SES is a not-for-profit organization that operates

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special education schools in Illinois and Arizona that help meet the educational, social, and

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emotional needs of young people who have severe behavioral and emotional handicaps.

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(Doc. 74 at 3). In Arizona, SES operates the SWEC, a special education school for

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kindergarten through 12th grade students in and around Phoenix who are challenged by

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social-economical, learning, and behavior difficulties. (Id.).

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Around 1990 SES hired Breeser to work at one of its schools in Illinois. (Doc. 74 at

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4). In 2004, Breeser moved from Illinois to Arizona to become the Principal/Administrator

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of the SWEC. (Id.). Breeser held this position until August 2008, when she became the Life

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Skills Director at SWEC. (Doc. 85 at 64-65 ¶ ¶ 41-44). Breeser was placed on sabbatical by

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SES sometime between the end of November and beginning of December 2008. (Doc. 85 at

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67 ¶ 48). On March 1, 2009, Breeser’s supervisor, William Andy Hubble (“Hubble”), called

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Breeser and terminated her employment. (Doc. 75 at 9 ¶ 53).

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On March 15, 2010, Plaintiffs filed a complaint against Defendant in the Maricopa

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County Superior Court. (Doc. 1-1). On July 27, 2012, Plaintiffs’ case was removed to this

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Court. (Doc. 1). On October 29, 2010, Plaintiffs filed a first Amended Complaint, asserting

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seven counts against Defendant. (Doc. 20). On April18, 2011, this Court dismissed all of

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the claims against Defendant except Count One for Wrongful Termination and the

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Defamation Claim found in Count Five. (Doc. 38 at 15).

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On June 11, 2012, Defendant filed a motion for summary judgment. (Doc. 74). On

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March 21, 2013, this Court entered summary judgment in favor of Defendant on Plaintiffs’

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remaining claims of wrongful termination and defamation (the “Order”). (Doc. 91). This

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Court found Plaintiffs’ wrongful termination claim was barred by the one-year statute of

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limitations because Breeser was terminated on March 1, 2009 and filed suit on March 15,

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2010. Judgment was entered and the case was closed. (Doc. 91 at 23).
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In deciding on the motion for summary judgment and in reviewing Plaintiffs’

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responsive pleadings, the Court noted that Plaintiffs’ controverting statement of facts (Doc.

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85) and statement of additional facts (Doc. 86) were grossly out of compliance with the

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Local Rules of Civil Procedure (“LRCiv”).

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statements of fact added substantive argument to Plaintiffs’ claims instead of only material

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facts as required by LRCiv 56.1(b) were a blatant attempt to subvert the seventeen page limit

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for responsive memoranda established by LRCiv 7.2(e)(1). (Id. at 4). The Court went on to

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make it clear that Plaintiffs’ counsel’s abuse of the rules was a glaring example of the kind of

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conduct that needlessly drives up the cost and time of litigation. (Id. at 22). In arguing for

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summary judgment Defendant moved to strike fifty-seven of the seventy controverting facts

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that Plaintiffs put forth. (Id. at 6). The Court explicitly did not grant Defendant’s motion

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and explained that it would consider or disregard the evidence consistent with the legal

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authority discussed in the Order. (Id. at 7). Ultimately, the Court held that Plaintiffs failed

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to bring forward any competent evidence that created a genuine dispute as to the material

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fact that Breeser was terminated on March 1, 2009. (Id. at 12). Because this date was over

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one year prior to the date Plaintiffs filed their complaint the statute of limitations had run and

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summary judgment was granted for Defendant on Plaintiffs’ wrongful termination claim.

(Id. at 2-7).

The Court found Plaintiffs’

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Following the judgment in favor of Defendant, and within the requisite twenty-eight

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days, Plaintiffs filed the pending Motion for reconsideration under Federal Rule of Civil

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Procedure 59 to Alter or Amend the Judgment. (Doc. 94). Plaintiffs’ Motion does not

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address the Court’s holding on Plaintiffs’ defamation claim, but only requests

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reconsideration of the Court’s holding on Plaintiffs’ wrongful termination claim. (Id.).

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II.

DISCUSSION

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Plaintiffs’ counsel describes myriad personal and administrative issues that led to his

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failure to follow the procedural rules and blames Defendant for misleading the Court. (Id. at

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2-10). Plaintiffs request this Court alter or amend the Order granting summary judgment to

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Defendant on Breeser’s wrongful termination claim. (Id. at 2). Sympathetic as the Court

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may be to counsel’s plight, these facts establish neither a factual nor legal nexus for grating a
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motion for reconsideration.

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understanding of the circumstances that brought about [his] (hopefully) uncharacteristic

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sloppy practice which . . . may be subject to understanding and forgiveness.” (Id. at 5).

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Counsel goes on to explain to the Court that “this is only the second time [he] has filed a

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responsive pleading to a motion for summary judgment in Federal Court to the best of [his]

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recollection in 45 years of practice.” (Id. at 6). While this may or may not be true, a quick

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search of the Court’s electronic filing system shows counsel has appeared before this Court

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in no less than sixty-four (64) different cases since 1973.

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unfamiliarity with the federal and local rules of civil procedure is simply beyond the pale.

Counsel “invoke[s] the Court’s sense of empathy and

For counsel to now plead

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Counsel’s admitted lack of understanding and adherence to the federal and local rules

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of civil procedure appears to not be isolated to responding to motions for summary

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judgment. While Plaintiffs’ pending Motion is filed under Federal Rule of Civil Procedure

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59, Plaintiffs fail to cite Rule 59 much less the legal standard that governs Rule 59 even once

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in arguing their Motion for reconsideration (Doc. 94). Instead, Plaintiffs entire argument for

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why the Court should grant their Motion is based on Federal Rule of Civil Procedure 56.

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(Doc. 94 at 10) (“we ask the Court under Rule 56(e) to exercise its authority to give Plaintiff

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the opportunity to properly support or address the facts.”). Federal Rule of Civil Procedure

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56 is entitled “Summary Judgment” and is applicable when one of the parties is preparing to

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move or has moved for summary judgment. That time has passed. A judgment has been

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ordered in this case. See (Doc. 91 at 23). Rule 56 is completely inapplicable to Plaintiffs’

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argument that the Court should grant their Motion for reconsideration.

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Plaintiffs eventually cite a correct legal standard for reconsideration in their Reply and

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begin to make an argument under Federal Rule of Civil Procedure 59. (Doc. 96 at 2-10).

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Ironically, in blaming Defendant for misleading the Court, Plaintiffs attempt to argue that

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“Defendant improperly stated its legal position in the Reply [(Doc. 90)] instead of [its]

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Motion [for summary judgment (Doc. 74)]” (Doc. 96 at 4), which is exactly what Plaintiffs

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have done here in their Reply (Doc. 96) instead of their Motion for reconsideration (Doc.

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94). In spite of this shortcoming, the Court will still apply the standard of Rule 59 to
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Plaintiffs’ arguments contained in their Motion for reconsideration.

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A.

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Under Federal Rule of Civil Procedure 59, reconsideration is only appropriate if the

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Court “(1) is presented with newly discovered evidence, (2) committed clear error or the

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initial decision was manifestly unjust, or (3) if there is an intervening change in controlling

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law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.

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1993). Plaintiffs do not argue that there is newly discovered or previously unavailable

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evidence, nor do they argue that there has been a change in law. Plaintiffs’ sole argument for

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reconsideration rests on the second factor: that the Court committed clear error and the initial

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Legal Standard

decision was manifestly unjust. (Doc. 96 at 2-10).

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The same standards govern determining both clear error and manifest injustice.

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Teamsters Local 617 Pension & Welfare Funds v. Apollo Grp., Inc., 282 F.R.D. 216, 231 (D.

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Ariz. 2012). The difficulty lies, however, in the lack of a definition of clear error for Rule

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59(e) purposes in the Ninth Circuit. Campion v. Old Republic Home Prot. Co., 2011 WL

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1935967, at *1 (S.D. Cal. May 20, 2011). The Ninth Circuit is not alone; “[c]ourts have

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generally not defined what constitutes ‘clear error’ under [that] Rule[.]” Pet Food Express

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Ltd. v. Royal Canin USA, Inc., 2011 WL 6140874, at *4 (N.D. Cal. Dec. 8, 2011) (internal

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quotation marks and citation omitted). Given that lack of definition, as in Campion and Pet

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Food Express, courts routinely look to the “clearly erroneous” standard invoked in the

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context of the law of the case doctrine. In that context, “‘clearly erroneous’ is a very

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exacting standard [,]’” Campion, 2011 WL 1935967, at *1 (quoting Hopwood v. Texas, 236

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F.3d 256, 273 (5th Cir. 2000) (citation omitted)), such that “a court should have a clear

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conviction of error.” Pet Food Express, 2011 WL 6140874, at *4 (quotation marks and

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citation omitted).

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decision of this or a lower court will not suffice[.]” Campion, 2011 WL 1935967, at *1

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(quoting Hopwood, 236 F.3d at 273 (citation omitted)). “To be clearly erroneous, a decision

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must strike [a court] as more than just maybe or probably wrong; it must be dead wrong.”

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Id.

Thus, “[m]ere doubts or disagreement about the wisdom of a prior

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Within the Ninth Circuit, courts also have looked to Black’s Law Dictionary, stating

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that “[a] manifest error of fact or law must be one ‘that is plain and indisputable, and that

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amounts to a complete disregard of the controlling law or the credible evidence in the

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record.’” In re Wahlin, 2011 WL 1063196, at *2 (Bankr. D. Idaho March 21, 2011) (quoting

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In re Oak Park Calabasas Condo. Ass’n, 302 B.R. 682, 683 (Bankr. C.D. Cal. 2003);

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quoting in turn Black’s Law Dictionary 563 (7th ed. 1999)). This definition comports with

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the Seventh Circuit’s “high standard for a party filing a motion for reconsideration on the

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basis of error[.]” Campion, 2011 WL 1935967, at *1. In the Seventh Circuit, “the movant

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must demonstrate a wholesale disregard, misapplication, or failure to recognize controlling

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precedent.”

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“manifest error of law is not merely a party’s disagreement with how the trial court applied

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the law.” In re Wahlin, 2011 WL 1063196, at *2. Nor is “[m]anifest error . . . demonstrated

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by the disappointment of the losing party.” Id. (citations and internal quotation marks

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omitted).

Id. (citation and internal quotation marks omitted).

By the same token,

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“Rule 59 motions cannot be used to ask the Court to rethink what the court has

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already thought through, merely because a plaintiff disagrees with the Court’s decision.”

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Ramsey v. Arizona, No. 05-3130-PHX-JAT, 2006 WL 2711490, at *1 (D. Ariz. Sept. 21,

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2006) (citations omitted). “Such disagreements should be dealt with in the normal appellate

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process.” Id. (citations omitted). “No motion for reconsideration shall repeat in any manner

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any oral or written argument made in support of or in opposition to the original motion.”

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Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003).

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Similarly, “[r]econsideration may not be used to re-litigate old matters or to raise arguments

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or present evidence that could have been raised prior to entry of an order.” Goodman v.

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Staples Office Store, LLC, CV 08-0445-PHX-JAT, 2009 WL 4827204, at *1 (D. Ariz. Dec.

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10, 2009) aff’d in part, rev’d in part sub nom. Goodman v. Staples The Office Superstore,

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LLC, 644 F.3d 817 (9th Cir. 2011) rev’d on other grounds, 644 F.3d 817 (9th Cir. 2011).

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“Ultimately, a party seeking reconsideration must show more than a disagreement with the

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Court’s decision, and recapitulation of the cases and arguments considered by the court
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before rendering its original decision fails to carry the moving party’s burden.” Teamsters,

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282 F.R.D. at 220 (citation omitted).

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B.

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In their motion for reconsideration that fails to address Rule 59, Plaintiffs argue that

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(1) under the Arizona Employee Protection Act (“AEPA”) Breeser’s date of termination

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should have been March 16, the last day she received pay and benefits (Doc. 94 at 13-16),

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and (2) the discovery rule should have applied to toll the statute of limitations until on or

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after March 16 (id. at 16-18). In their Reply, where Plaintiffs first make their argument

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under Rule 59, Plaintiffs contend that the Court committed clear error in finding the statute

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of limitations began on March 1st when Breeser told the State of Arizona she was terminated

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because the Court based this decision on the wrong legal issue. (Doc. 96 at 2). In the Reply,

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Plaintiffs reiterate their first argument and explain that “how” the Court determined

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Breeser’s date of termination was the wrong legal issue and thus, the Court committed a

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clear legal error.

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“Defendant rephrases the issue [in the Response] as being one where Plaintiff claims this

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Court ‘committed error’ . . . . [t]his is not our position.” (Id. at 7). The Court notes that if

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Plaintiffs’ position is that the Court did not commit error then there is no basis for relief left

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under Rule 59. However, in the interest of clarity and because Plaintiffs’ pleadings do in fact

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allege the Court committed clear error the Court will still address Plaintiffs’ argument.

Analysis

(Id. at 2-3).

Oddly, Plaintiffs then contradict themselves and state

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Plaintiffs repeatedly argue that Defendant misled and caused the Court to decide on

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the wrong legal issue with statements like Defendant “focused the Court’s attention on the

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wrong legal issue and wrong law.” (Id. at 2). Indeed, one of Plaintiffs headings states

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“DEFENDANT LED THE COURT INTO LEGAL ERROR AND DEFENDANT’S

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CONDUCT WAS MANIFESTLY UNJUST.” (Id. at 7). As explained in the legal standard

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governing Rule 59 above, this rule concerns the Court’s judgment and whether or not

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Defendant’s conduct was manifestly unjust is irrelevant to the analysis.

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These statements make it appear Plaintiffs believe the Court was or is incapable of

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reaching a conclusion based on the facts and the applicable law as it stands without the help
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of the parties.

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judgment was reached under applicable Arizona law and not simply under what Defendant

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directed the Court to conclude. As explained above, if Plaintiffs feel the Court is wrong

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there is an appellate process to deal with such an occasion. Further, the Court reminds

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Plaintiffs’ counsel that the burden rests with the plaintiff to argue the plaintiff’s case, and

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explain why the law supports the plaintiff’s claim, regardless of what the defendant argues.

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If counsel felt Defendant had misguided the Court to the wrong legal issue and the Court was

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incapable of researching and applying the applicable law on its own, it was up to counsel to

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point out the law supporting Plaintiffs’ claim.

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The Court assures Plaintiffs’ counsel that the Order granting summary

Date of Termination

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Plaintiffs’ first argument appears to center on the Court’s interpretation of the AEPA.

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Plaintiffs argue that Breeser’s date of termination should have been March 16, the last day

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she received pay and benefits under the AEPA. (Doc. 94 at 13-16). Plaintiffs concede that

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in the Order the Court cited the correct statute governing the statute of limitations in a

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wrongful termination claim under the AEPA. (Id. at 2). In the Order the Court stated,

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The statute of limitations to bring a wrongful termination claim
under the AEPA is one year and is found in A.R.S. §12-541(4).
The statute of limitations states, “[t]here shall be commenced and
prosecuted within one year after the cause of action accrues, and
not afterward” actions “[f]or damages of wrongful termination.”

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(Doc. 91 at 9) (citing A.R.S. § 12-541) (emphasis added). Plaintiffs try to parse this

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language and argue that the Court committed legal error because it determined that the

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statute of limitations began to accrue when Breeser was terminated and not on the date when

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she discovered that she was wrongfully terminated. (Doc. 96 at 2-3). Plaintiffs’ argument

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proceeds that Breeser did not become aware she was wrongfully terminated until on or after

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March 16th when she received her last pay check and therefore the statute of limitations

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could not have begun to run until this date. Plaintiffs attempt to lay the blame on Defendant

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and claim it was Defendant’s analysis, focusing solely on the date of alleged termination,

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that mislead the Court into not considering when Breeser realized she had been wrongfully
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terminated.

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Defendant misled the Court into adopting the wrong standard for determining accrual—the

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date Defendant announced termination—instead of using the date Breeser discovered she

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was wrongfully terminated, which Plaintiffs argue is the correct standard under the AEPA.

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(Id. at 3).

(Id.).

Plaintiffs conclude that the Order was manifestly unjust because

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Plaintiffs’ argument is essentially that under Arizona law, the statute of limitations

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begins on the last day that the employee receives pay and/or benefits. (Doc. 94 at 13 n.2);

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(Doc. 96 at 6-7). Plaintiffs concede that “the record is clear, we accept [ ] the record

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supports the basis for the Court to find that March 1, 2009 was the date Defendant stated to [

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] Breeser she was terminated.” (Doc. 96 at 4-5). Plaintiffs then rely on Zenaty-Paulson v.

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McLane/Sunwest Inc., No. CIV-99-472-PHX-RCB, 2000 WL 33300666 (D. Ariz. Mar. 20,

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2000), and Haggerty v. Am. Airlines, Inc., 102 F. Apppx. 623 (9th Cir. 2004) as the basis for

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their argument that the statute of limitations in an AEPA case, however, starts on the last day

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an employee receives pay and/or benefits. (Doc. 94 at 13-16); (Doc. 96 at 7-10). The Court

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finds Plaintiffs’ argument does not warrant reconsideration for two reasons.

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First, as Plaintiffs acknowledged in the pending Motion (Doc. 94 at 14), Zenaty-

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Paulson and Haggerty were both addressed in Defendant’s prior motion for summary

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judgment (Doc. 74 at 8) and Reply (Doc. 90 at 5). However, regardless of the reason,

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Plaintiffs chose not to address these cases in their prior response to Defendants motion for

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summary judgment (Doc. 81). Nothing has changed in either case since this Court’s Order.

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Consequently, no new argument based on these cases can possibly be made that was not

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available to Plaintiffs prior to the Order.

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(“[r]econsideration may not be used to re-litigate old matters or to raise arguments or present

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evidence that could have been raised prior to entry of an order.”).

See Goodman, 2009 WL 4827204, at *1

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Second, even if the Court were to consider these cases and Plaintiffs’ argument, in

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spite of the clear legal standard governing Rule 592, these cases do not support Plaintiffs’

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See also Teamsters, 282 F.R.D. at 220 (“recapitulation of the cases and arguments
considered by the court before rendering its original decision fails to carry the moving
party’s burden.”).
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current argument.

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limitations began on February 24, 1997, the date the plaintiff employee received a letter from

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the defendant giving her a choice between demotion or termination, which effectively gave

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the plaintiff notice of her misrepresentation claim in that case. 2000 WL 333000666, at *14.

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The plaintiff employee argued that the statute of limitations began on the date of termination,

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March 14, 1997, and that the date of termination in that case was the date she received a

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letter of termination, i.e. notice, from the employer.

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determining what event triggered the statute of limitations. Id. The court found that the

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statute of limitations began to accrue on February 28, 1997, because that was the date

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In Zenaty-Paulson, the defendant employer claimed the statute of

Id.

The court was faced with

plaintiff had both stopped working and received her final paycheck. Id. at *15.

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In the pending Motion, Plaintiffs argue the fact that the Zenaty-Paulson court found

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“most significant” in reaching this conclusion was that the employee did “not argue that [the

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employer] still owe[d] her money for the period between February 28 and March 14,” when

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plaintiff received notice of termination from her employer. (Doc. 94 at 14). However, the

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Zenaty-Paulson court merely called this fact “significant.” 2000 WL 333000666, at *15.

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Contrary to Plaintiffs’ argument, no bright line test was established whereby all dates of

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termination are determined solely by the last day an employee is paid. The question is left

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open what would have happened had the plaintiff stopped working prior to February 28, but

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was still given her last pay check on February 28? In Zenaty-Paulson, the last day of pay

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was merely a significant factor the court considered in determining the date of termination

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given the circumstances of that case, because the last day of pay also aligned with the last

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day the plaintiff stopped working.

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In Haggerty, the Ninth Circuit Court of Appeals merely affirmed the district court’s

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holding that an employee’s wrongful termination cause of action accrued, for purposes of the

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one-year statute of limitations under the AEPA, when his employer terminated his

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employment. 102 Fed.Appx. at 623. The date of the plaintiff’s last day of payment was

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never considered or mentioned. The Court of Appeals did cite International Union of

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Electrical Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 234-35 (1976), for the
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proposition that a wrongful termination cause of action accrues on the date of termination.

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Contrary to Plaintiffs’ argument here though, this case did nothing to parse the effect the last

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day of pay had on the court’s consideration of the termination date. It merely stands for the

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proposition that the one year statute of limitations in an AEPA case starts on the termination

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date.

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In citing Haggerty, Plaintiffs also cited Electrical Workers Local 790 as precedent for

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their argument. (Doc. 94 at 16); (Doc. 96 at 8). Plaintiffs cite the holding of Electrical

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Workers Local 790 as “the relevant date is the date the employee ‘stopped working and

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received pay and benefits . . . .’” (Doc. 96 at 8) (citing 429 U.S. at 234-35) (emphasis in

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Plaintiffs’ pleading). In that case, however, the United States Supreme Court held that

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October 25, 1971 was the date of termination because on that day the plaintiff (1) was

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notified of her termination, (2) stopped working, and (3) she ceased receiving pay and

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benefits. Like Zenaty-Paulson, in Electrical Workers Local 790 the last day the employee

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received pay and benefits was but one of multiple factors the courts considered in

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determining the date of termination.

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Unlike Zenaty-Paulson and Electrical Workers Local 790, the date Breeser stopped

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receiving pay, March 16th, was not the same day she stopped working nor was it the same

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day she was told she was terminated. March 1st was the day she was terminated and the day

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she stopped working. As the Court explained in its Order, March 1st is also the day Breeser

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explicitly told the Arizona Department of Economic Security that she was called on the

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phone by Hubble and told she was terminated. (Doc. 91 at 10-11) (citing Doc. 75-3 at 56).

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The Court chose not to analyze Zenaty-Paulson or Haggerty in its Order primarily because

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Plaintiffs did not address these cases in their arguments opposing summary judgment, and

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also because the Court did not have to address them to make its decision. The Court

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declined to find a contested issue of material fact in granting summary judgment to

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Defendant because Plaintiffs’ counsel did not submit enough evidence to show there was a

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genuine dispute. Merely submitting a declaration whereby Breeser contradicted her own

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prior statement was not enough in this case. See (Doc. 91 at 12).
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Accordingly, even if the Court were to consider Plaintiffs’ arguments now, Plaintiffs

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have not met their burden to warrant reconsideration and shown the Court’s decision was

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“dead wrong.” Campion, 2011 WL 1935967, at *1. “A manifest error of fact or law must be

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one ‘that is plain and indisputable, and that amounts to a complete disregard of the

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controlling law or the credible evidence in the record.’” In re Wahlin, 2011 WL 1063196, at

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*2 (quoting Black’s Law Dictionary 563 (7th ed. 1999)). Plaintiffs have made no such

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showing.

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2.

Discovery Rule

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Plaintiffs also argue that the Court should have applied the discovery rule to

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determine when the statute of limitations began. Plaintiffs made this identical argument in

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their response to Defendant’s motion for summary judgment (Doc. 81). As the Court

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pointed out in its Order, prior to judgment the extent of Plaintiffs’ argument that the

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discovery rule applied consisted of a lone conclusory statement in their response where

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Plaintiffs’ stated “since the law of Arizona is that the discovery rule governs accrual of the

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statute of limitations, a genuine issue of material fact exists.” (Doc. 81 at 8). To raise this

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argument again, Plaintiffs now argue “in a case such as this involving a claim that the

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discovery rule applies to determine the accrual date, the Court must apply that standard.”

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(Doc. 94 at 16). Plaintiffs apparently still think that merely invoking the discovery rule and

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declaring that it applies is all a party needs to do for the Court to apply such a rule. Plaintiffs

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are simply wrong.

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As the Court has explained once before, it is not enough to just claim that the

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discovery rule applies. “That common law rule [the discovery rule], if sufficient evidence

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supporting its application is presented, may delay commencement of the time period within

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which suit must be filed.” (Doc. 91 at 9) (quoting Logerquist v. Danforth, 932 P.2d 281, 284

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(Ariz. Ct. App. 1996)) (emphasis added). “The burden of establishing that the discovery rule

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applies to delay the statute of limitations rests on plaintiff.” Id. (quoting Logerquist, 932

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P.2d at 284). “Once the defendant has established a prima facie case entitling him to

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summary judgment on a statute of limitations defense, the plaintiff has the burden of
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showing available, competent evidence that would justify a trial.” Id. (quoting Logerquist,

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932 P.2d at 284).

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Plaintiffs now argue that they attempted to protect the record in their response to

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Defendant’s motion for summary judgment by alerting the Court to the fact that there was an

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issue regarding application of the discovery rule and that Plaintiffs were relying on it. (Doc.

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94 at 16). Plaintiffs explain that Defendant misled the Court in its reply by only quoting part

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of Plaintiffs’ amended complaint.

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Defendant raised the issues in its motion for summary judgment, “Plaintiff would have been

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able to fully extricate the law regarding the discovery rule and would have cited the facts and

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exhibits supporting the fact that Plaintiff’s cause of action under A.R.S. § 23-1510 did not

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accrue until after March 15, 2009 with alacrity.”

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misguided given the Court’s explanation of Arizona law.

(Id. at 17).

Ultimately, Plaintiffs contend that had

(Id. at 18).

Plaintiffs’ argument is

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In their motion for summary judgment, Defendant established a prima facie case

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entitling them to summary judgment on a statute of limitations defense. Plaintiffs had the

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burden at that point establish that the discovery rule applied. All of the evidence Plaintiffs

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now claim establishes the discovery rule should have applied was available to Plaintiffs to

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present at the time they filed their response to Defendant’s motion for summary judgment.

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Plaintiffs failed to present this evidence at that time. Plaintiffs present no evidence now that

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was not available to them prior to the Court’s Order. See Goodman, 2009 WL 4827204, at

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*1 (“[r]econsideration may not be used to re-litigate old matters or to raise arguments or

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present evidence that could have been raised prior to entry of an order.”). The Court makes

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no determination of whether this evidence actually establishes that the discovery rule should

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have applied.

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Further, in contending that the discovery rule should have applied Plaintiffs make no

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argument that the Court committed clear error or explain how the Court’s finding—of

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whether Plaintiffs presented enough evidence before the Order to establish that the discovery

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rule should have applied—was manifestly unjust.

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manifestly unjust to Plaintiffs’ position. However, as explained above, see supra, Section
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Plaintiffs argue that the result is

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II.A, that is not the standard of manifest injustice that the Court must apply. Plaintiffs have

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not shown that the Court was “dead wrong” in its decision given the evidence Plaintiffs

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presented to the Court before entering judgment. See Campion, 2011 WL 1935967, at *1.

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IV.

CONCLUSION

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Based on the forgoing,

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IT IS ORDERED that Plaintiffs’ Motion to Alter or Amend Judgment (Doc. 94) is

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denied.
Dated this 24th day of June, 2013.

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