Mix v. Asurion Insurance Services Incorporated et al

Filing 127

ORDER denying 126 Motion for Reconsideration. See attached Order for details. Signed by Judge G Murray Snow on 1/13/2017.(KFZ)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Amanda Mix,

No. CV-14-02357-PHX-GMS
Plaintiff,

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ORDER

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v.

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Asurion Insurance Services Incorporated, et
al.,

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Defendants.
Pending before the Court is Plaintiff Amanda Mix’s Motion for Reconsideration.
(Doc. 126.) For the reasons discussed below, the motion is denied.
BACKGROUND

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The facts in this case are set forth in the order denying Mix’s motion for class

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certification. (Doc. 123.) In that order, the Court found that Mix had failed to meet the

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requirements of Federal Rule of Civil Procedure 23(a) in seeking to certify two classes

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and one subclass. Mix now contends that a newly decided Ninth Circuit case, Briseno v.

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ConAgra Foods, Inc., No. 15-55727, 2017 WL 24618 (9th Cir. Jan. 3, 2017), undermines

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the Court’s reasoning in its order. Mix also asserts that the Court erred in some of its

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reasoning, apart from any new law announced in Briseno.

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DISCUSSION

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Local Rule of Civil Procedure 7.2(g)(2) provides “Absent good cause shown, any

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motion for reconsideration shall be filed no later than fourteen (14) days after the date of

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the filing of the Order that is the subject of the motion.” The Court’s order denying class

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certification was filed on December 14, 2016, while Mix’s motion for reconsideration

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was filed on January 10, 2017. This exceeds the fourteen day limit; however, Mix’s

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motion largely relies on a new Ninth Circuit case issued on January 3, 2017. “Good

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cause” primarily concerns a party’s diligence in filing the motion.

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Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th Cir. 1992). No extra diligence would

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have allowed Mix to bring Briseno to this Court’s attention before it was issued, and Mix

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has therefore shown good cause for the delay.

See Johnson v.

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Whether Briseno can support a motion for reconsideration is another matter. “The

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Court will ordinarily deny a motion for reconsideration of an Order absent a showing of

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manifest error or a showing of new facts or legal authority that could not have been

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brought to its attention earlier with reasonable diligence.” L.R. Civ. P. 7.2(g)(1); see also

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

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1993) (noting that motions to reconsider are appropriate only if the Court “(1) is

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presented with newly discovered evidence, (2) committed clear error or the initial

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

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law”), cert. denied, 512 U.S. 1236; Motorola, Inc. v. J.B. Rodgers Mech. Contractors,

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Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003) (holding that a motion for reconsideration is

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appropriate only when there is newly-discovered fact or law, newly-occurring facts, a

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material change in the law, or upon a convincing showing that the Court failed to

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consider material facts that were presented before the initial decision). A motion for

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reconsideration is an inappropriate vehicle to ask the Court to “rethink what the court has

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already thought through—rightly or wrongly.” See United States v. Rezzonico, 32 F.

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Supp. 2d 1112, 1116 (D. Ariz. 1998) (quoting Above the Belt, Inc. v. Mel Bohannan

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Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). “Arguments that a court was in error

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on the issues it considered should be directed to the court of appeals.” Defs. of Wildlife v.

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Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995) (quoting Refrigeration Sales Co., Inc.

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v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983)).

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Mix asserts that the Court should reconsider its order in light of the “extremely

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helpful guidance” of Briseno. But Briseno did not actually change the controlling law.

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The Ninth Circuit simply made explicit that, consistent with circuit precedent, a plaintiff

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need not demonstrate an “‘administratively feasible’ means of identifying absent class

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members” as a prerequisite to class certification. Briseno, 2017 WL 24618 at *1. A

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“change in controlling law requires more than ‘merely confirm[ing]’ the state of existing

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law.” Teamsters Local 617 Pension & Welfare Funds v. Apollo Grp., Inc., 282 F.R.D.

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216, 222 (D. Ariz. 2012) (quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563,

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568 n.3 (5th Cir. 2003)).

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That Briseno did not change controlling law is reflected in part by the fact that this

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Court’s order is consistent with Briseno. The Ninth Circuit wrote that “Rule 23(a)

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constitutes an exhaustive list” of the “prerequisites to maintaining a class action in federal

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court,” id. at *4, and that a court should analyze those factors and not create more in

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deciding whether to certify a class. That is what this Court did, finding that the Asurion

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Class and Asurion subclass failed under Rule 23(a)(3) and (a)(4), and that the Sterling

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Class failed under Rule 23(a)(2), (a)(3), and (a)(4). (Doc. 123 at 20, 26.)

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Moreover, while Briseno instructs that “courts should not let the perfect become

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the enemy of the good,” Briseno, 2017 WL 24618 at *8 (quoting Mullins v. Direct

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Digital, LLC, 795 F.3d 654, 666 (7th Cir. 2015)), the applicability of that admonition

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varies based on the facts of a given case. Briseno dealt with a “low-value consumer class

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action[],” the type of case that “typically involve[s] low-cost products and, as a result,

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recoveries too small to incentivize individual litigation.”

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certification based on the highly unlikely event that any plaintiff would be better off

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opting out would “protect a purely theoretical interest.” Id.

Id. at 7.

To deny class

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In this way, the Ninth Circuit’s reasoning in Briseno was similar to the Seventh

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Circuit’s reasoning in Murray v. GMAC Mortgage Corp., 434 F.3d 948 (7th Cir. 2006),

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which this Court addressed, considered, and found distinguishable from the class action

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in this case. (Doc. 123 at 23–24.) The Court has already thought through whether other

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potential class members have sufficiently different interests from Mix to preclude class

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certification and has decided that the concerns here are not “purely theoretical.”

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Appellate review, not a motion for reconsideration, is the proper place to seek review of

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the Court’s reasoning. See Defs. of Wildlife, 909 F. Supp. at 1351.

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The remainder of Mix’s motion raises certain supposed errors in the Court’s

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reasoning. Mix demonstrates no manifest error; moreover, she demonstrates no reason

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why she could not have brought any alleged errors to the Court’s attention within the

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time frame required by Local Rule of Civil Procedure 7.2(g)(2).

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IT IS THEREFORE ORDERED that Plaintiff Amanda Mix’s Motion for
Reconsideration (Doc. 126) is DENIED.
Dated this 13th day of January, 2017.

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Honorable G. Murray Snow
United States District Judge

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