Pickett v. Wells Fargo Bank NA et al

Filing 40

ORDER denying 37 Motion for Reconsideration ; denying as moot 38 Motion to Postpone Hearing. Signed by Judge David G Campbell on 12/12/16.(KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tracy Nicole-Pickett,
Plaintiff,

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ORDER

v.

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No. CV-16-03262-PHX-DGC

Wells Fargo Bank, N.A., et al.,

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Defendants.

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The Court dismissed this case on December 8, 2016. Doc. 36. Dismissal of the

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claims against Defendant Wells Fargo Bank, N.A., was based on res judicata. Dismissal

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of the remaining claims resulted from Plaintiff’s steadfast refusal to participate in a case

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management conference. Plaintiff has now filed a motion for reconsideration. Doc. 37.

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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 provides no basis for the Court to conclude that its res judicata ruling was

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incorrect with respect to Defendant Wells Fargo. Plaintiff argues that it is “absurd” to

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conclude that her claims against Wells Fargo in this case are not new. Doc. 37 at 5. The

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Court disagrees for reasons stated in its previous order (Doc. 36 at 2), but also notes,

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again, that “‘[r]es judicata bars relitigation of all grounds of recovery that were asserted,

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or could have been asserted, in a previous action between the parties, where the previous

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action was resolved on the merits.’” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

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Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) (quoting United States ex rel.

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Barajas v. Northrop Corp., 147 F.3d 905, 909 (9th Cir. 1998)) (emphasis added). “‘It is

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immaterial whether the claims asserted subsequent to the judgment were actually pursued

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in the action that led to the judgment; rather, the relevant inquiry is whether they could

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have been brought.’” Id. (quoting Barajas, 147 F.3d at 909).

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Plaintiff’s arguments regarding the remainder of the dismissal are also unavailing.

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She argues again that her mortgage was paid in full, the trustee’s sale was wrongful, etc.

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Doc. 37. She does not address the fact that she refused to participate in the case

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management conference despite repeated efforts by the Court and its staff to persuade her

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to do so. Nor does she argue that the Court incorrectly applied the factors in Valley

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Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998). See

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Doc. 36 at 5.

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Plaintiff again argues that the Court should have remanded this case to state court,

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but she does not dispute that Defendants had no opportunity to respond in writing to her

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motion to remand before the case management conference. Once the case had been

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removed, the Court had the authority to “issue all necessary orders and process to bring

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before it all proper parties,” 28 U.S.C. § 1447(a), including through a case management

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conference. Plaintiff’s adamant refusal to comply with the Court’s order and participate

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in the conference provided a valid basis for dismissal under Rule 41(b).

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Plaintiff appears to argue, as she did in her remand motion, that the removal was

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not joined by all Defendants. But 28 U.S.C. § 1446(a)(2) states that removal must be

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made only by “all defendants who have been properly joined and served[.]” At the time

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of removal, only Wells Fargo had been served. Doc. 1 at 2.

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IT IS ORDERED:

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1.

Plaintiff’s motion for reconsideration (Doc. 37) is denied.

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2.

Plaintiff’s motion to postpone hearing (Doc. 38) is denied as moot.

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Dated this 12th day of December, 2016.

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