Hutson v. ME CapitaL LLC et al

Filing 19

ORDER denying 16 Plaintiff's Motion for Reconsideration. Signed by Judge David G Campbell on 12/12/16.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kevin Hutson,
Plaintiff,

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ORDER

v.

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No. CV-16-1921-PHX-DGC

ME Capital LLC, et al.,

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Defendants.

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The Court dismissed this case on November 15, 2016. Doc. 15. Dismissal was

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based on Plaintiff’s failure to comply with the Court’s orders and participate in a case

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management conference. Plaintiff has now filed a motion for reconsideration. Doc. 16.

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At the Court’s request, Defendant ME Capital LLC has filed a response. Doc. 18.

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Courts in this district have identified four circumstances where a motion for

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reconsideration will be granted: (1) the moving party has discovered material differences

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in fact or law from those presented to the Court at the time of its initial decision, and the

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party could not previously have known of the factual or legal differences through the

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exercise of reasonable diligence; (2) material factual events have occurred since the

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Court’s initial decision; (3) there has been a material change in the law since the Court’s

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initial decision; or (4) the moving party makes a convincing showing that the Court failed

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to consider material facts that were presented to the Court at the time of its initial

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decision. See, e.g., Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D.

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581, 586 (D. Ariz. 2003). Motions for reconsideration are disfavored, and are not the

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place for parties to make new arguments not raised in their original briefs. See Northwest

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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).

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Nor is it the time to ask the Court to rethink what it has already thought. See United

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States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998).

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Plaintiff argues that reconsideration should be granted because his failure to

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participate in the case management conference was due to excusable neglect. Plaintiff

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asserts that he had not yet served Defendants, he was seeking permission to serve them

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by publication, and he “had no reason to believe they would appear in this case or

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cooperate to file a joint case management report.” Doc. 16 at 4-5. This plainly is

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incorrect. Defense counsel attempted to contact Plaintiff repeatedly, spoke with him by

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phone, and sent him letters, including attempts to confer about the case management

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conference.

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Defense counsel made two calls to Plaintiff on September 26, 2016. Doc. 9 at 1.

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Plaintiff returned the calls on September 27, but stated that he was uneasy discussing the

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case by phone. Defense counsel suggested an in-person meeting at an agreeable location,

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and Plaintiff said he wanted to think about it and would call back in an hour. He never

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called. Id. at 2.

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Defense counsel called Plaintiff again on October 3 and 4, leaving messages both

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times. Plaintiff called back on October 4, again declined to discuss the case by phone,

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and also declined to meet in person. Id. Defense counsel avows that Plaintiff said “[t]he

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Court cannot require us to meet.” Doc. 18-1 at 3.

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Defense counsel wrote to Plaintiff on October 5 and included a copy of the Court’s

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order requiring the parties to confer in advance of the case management conference and

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prepare a joint report, and also requiring Plaintiff to initiate these efforts. Doc. 18-1 at 7-

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12. The letter offered to meet at defense counsel’s office “or at any other location that

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might be more convenient for you.” Id. at 7. The letter was also emailed to Plaintiff. Id.

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at 6. Defense counsel made several attempts to contact Plaintiff after this letter, and

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finally spoke with him by phone on October 20, 2016. Defense counsel explained that

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the Court’s order required the parties to meet and confer. Plaintiff declined to meet or

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assist in preparing for the case management conference. Defense counsel confirmed this

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conversation in a letter that was mailed and emailed to Plaintiff. Id. at 18-1 at 14-15.

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In addition to defense counsel’s many efforts to communicate, the Court advised

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Plaintiff of his need to participate in the case management conference. The order setting

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the conference was mailed to Plaintiff by the Clerk on October 12, 2016 (Doc. 10,

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followed by Court-only entry), and mailed again to Plaintiff by defense counsel (Doc. 18-

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1 at 7-12). The order was clear: “The parties are directed to meet and confer at least 10

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days before the Case Management Conference.” Doc. 10 at 1. “[T]he parties shall

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develop a joint Case Management Report which contains the information called for in

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section B below.” Id. “The parties shall jointly file the Case Management Report with

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the Clerk not less than seven days before the Case Management Conference.” Id. at 4.

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“It is the responsibility of Plaintiff(s) to initiate the Rule 26(f) meeting and preparation of

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the joint Case Management Report.” Id. “[A]ny party that is not represented by counsel

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. . . shall appear and participate in the Case Management Conference.” Id.

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Furthermore, when Plaintiff failed to respond to a motion to dismiss filed by

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Defendants on September 23, 2016, the Court entered an order directing Plaintiff to file a

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response. Doc. 11. The order specifically advised Plaintiff of his duty to become

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familiar and comply with the relevant rules of procedure. Id. at 1. The order also

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contained this warning: “Plaintiff is further advised that if he fails to prosecute this

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action, or if he fails to comply with the rules or any Court order, the Court may dismiss

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the action with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.”

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Id. at 2.

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Given these communications, orders, and warnings, the Court simply cannot

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accept Plaintiff’s assertion that he “had no reason to believe” he was required to

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cooperate in preparing for the case management conference or to appear at the

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conference. Plaintiff has not shown excusable neglect.

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Plaintiff also argues that the Court could not exercise jurisdiction in this case

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because Defendants had not been served. Doc. 16 at 5-6. But Plaintiff himself filed a

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notice stating that service had occurred. Doc. 7. Even if Defendants had not been served

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properly, they stated that they were appearing specially and attempted to work with

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Plaintiff in preparing for the case management conference. Parties can participate in

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litigation without waiving their claim that the Court lacks personal jurisdiction, provided

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they have raised that issue appropriately and not forfeited it by subsequent conduct. Fed.

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R. Civ. P. 12(h). Defendants preserved the issue by filing a motion to dismiss (Doc. 8),

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and the Court did not lack jurisdiction to hold a case management conference in the

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meantime.

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IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 16) is denied.

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Dated this 12th day of December, 2016.

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