Thacker v. GPS Insight LLC et al

Filing 162

ORDER denying Plaintiff's 153 Motion for Reconsideration; denying Plaintiff's 161 Objection and Motion for Leave to File a Reply; denying Plaintiff's request for additional discovery of text messages. Signed by Senior Judge David G Campbell on 9/27/19. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeremy Thacker,
Plaintiff,

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ORDER

v.

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No. CV-18-0063-PHX-DGC

GPS Insight LLC, et al.,

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Defendants.

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On August 14, 2019, the Court issued an order denying Plaintiff’s motion for

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summary judgment. Doc. 151. Plaintiff has filed a motion for reconsideration, to which

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Defendant has responded. Docs. 153, 160. Plaintiff has also filed a motion for leave to

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file a reply. Doc. 161. The Court will deny both motions.

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I.

Legal Standard.

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Motions for reconsideration are disfavored and should be granted only in rare

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circumstances. See Stetter v. Blackpool, No. CV 09-1071-PHX-DGC, 2009 WL 3348522,

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at *1 (D. Ariz. Oct. 15, 2009). A motion for reconsideration will be denied “absent a

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

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been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1); see also

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United Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). Mere

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disagreement with an order is an insufficient basis for reconsideration. See Ross v. Arpaio,

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No. CV 05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. 2008). Nor should

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reconsideration be used to ask the Court to rethink its analysis. Id.; see N.W. Acceptance

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

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II.

Discussion.

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Plaintiff contends that the Court misconstrued the evidence regarding his Title VII

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retaliation claim and committed manifest error in holding that Kristin Lisson did not engage

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in protected activity prior to his termination. Doc. 153 at 2. Plaintiff reiterates evidence

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presented in his original motion and provides new authority without explaining why it

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could not have been brought to the Court’s attention earlier. For this reason, the Court will

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deny the motion. See LRCiv 7.2(g)(1); Salt River Project Agric. Improvement & Power

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Dist. v. Trench France SAS, No. CV-17-01468-PHX-DGC, 2017 WL 6554860, at *1 (D.

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Ariz. Dec. 22, 2017) (“reconsideration will not be granted on the basis of legal authority

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that could . . . have been brought to the Court’s attention earlier with reasonable

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diligence.”).

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But even considering this new authority, the result would remain the same. The

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Court considered and rejected Plaintiff’s assertion that Lisson’s opposition to Robert

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Donat’s advances rose to the level of protected activity under Title VII. The Court

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reviewed the evidence cited by Plaintiff and found that it either related to matters other

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than Title VII harassment (allegations that Donat caused Lisson to have a panic attack or

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that she was threatening her professional reputation by associating with Plaintiff), or

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concerned complaints of harassment made after Plaintiff was terminated. Doc. 151 at 9-

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10. Plaintiff now stresses that Lisson rejected Donat’s romantic advances, and that such

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rejection can amount to protected activity. But each of these alleged rejections occurred in

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the context of Lisson ending her romantic relationship with Donat in favor of a new

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relationship with Plaintiff. In this context, Lisson’s alleged rejections would not have made

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Donat “reasonably . . . aware that [she was] engaging in protected activity.” Ekweani v.

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Ameriprise Fin., Inc., No. CV-08-01101-PHX-FJM, 2010 WL 481647, at *6 (D. Ariz. Feb.

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8, 2010) (citing Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)); see also

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Quinones v. Potter, 661 F. Supp. 2d 1105, 1126-27 (D. Ariz. 2009) (citing Galdieri-

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Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998) for the

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proposition that “implicit in the requirement that the employer have been aware of the

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protected activity is the requirement that it understood or could reasonably have

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understood, that the plaintiff’s opposition was directed at conduct prohibited by Title VII”).

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Plaintiff next contends that the Court erred in interpreting the transcript of Plaintiff’s

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March 2 meeting with Jason Walker and Tyler Mortenson. Plaintiff argues the Court erred

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by finding that Plaintiff “was referring to the Vice President, Elliot Batcheller, not Donat”

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at this meeting. Doc. 151 at 8. Plaintiff is correct. But even with the transcript referring

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to Donat as the primary culprit for the hostile workplace, the result is the same. As the

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Court explained in its previous order, “mere assertions of hostility are insufficient to

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constitute protected activity without alleging discrimination or harassment based on age,

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race, sex, or another Title VII protected category.” Doc. 151 at 8.

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Nor will the Court reconsider its conclusion that Plaintiff did not engage in protected

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activity in his communications with Mortenson prior to his termination. Doc. 151 at 7-8.

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The Court rejected Plaintiff’s arguments because his complaints to Mortenson concerned

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compensation or his relationship with Lisson, an invalid Title VII theory. Id. at 4-5, 7.

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Plaintiff again reiterates arguments made in his summary judgment brief, without

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indicating where the Court erred. See Doc. 129 at 3-4. Motions for reconsideration may

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not repeat arguments already made, and mere disagreement with a court’s order is

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insufficient grounds for reconsideration.

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reconsideration of an Order may repeat any oral or written argument made”); see also

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United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) (“A motion for

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reconsideration should not be used to ask the court ‘to rethink what the court had already

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thought through[.]’”).

See LRCiv 7.2(g)(1) (“No motion for

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Plaintiff also argues that because the Court found an issue of fact regarding Donat’s

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participation in his termination, there must be an issue of fact relating to his Title VII claim

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as well. This comparison is inapposite. Because neither Lisson nor Plaintiff engaged in

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protected activity, there is no Title VII claim, whether or not Donat was involved.

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Finally, Plaintiff has filed a motion for leave to file a reply, arguing that Defendant’s

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reliance on new excerpts from Lisson’s deposition is inappropriate. Doc. 161.1 The Court

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has not relied on this evidence, and the motion for leave to file a reply will therefore be

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denied.

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III.

Plaintiff’s Request for Additional Discovery.

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The Court previously ruled on various discovery issues between the parties, and

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stated that it would rule on the text messages between Lisson and Donat after it resolved

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Plaintiff’s motion for reconsideration. Doc. 155. The Court now addresses the parties’

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text message dispute.

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This case has a troubled discovery history. As Judge Humetewa explained, the

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parties’ discovery disagreements spanned months and many filings with the Court.

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Doc. 134 at 1-3. Judge Humetewa noted that Plaintiff’s previous counsel sought all

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discovery, including the texts Plaintiff now seeks, through Defendant’s voluntary

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disclosures under the Court’s MIDP pilot. She stated: “It has become clear to the Court

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that Plaintiff is attempting to use the rules of the MIDP to expand its intended purpose and

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to reopen and expand the scope of discovery.” Id. at 3. Defendant included the texts it

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believed to be relevant in its MIDP disclosures, Plaintiff disagreed, but Plaintiff did not

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serve timely requests for production that sought additional texts. Judge Humetewa denied

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Plaintiff’s request for the additional texts. Id. at 6.

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Plaintiff’s current counsel raises the same issue, arguing again that Defendant has

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wrongly withheld text messages between Lisson and Donat that are relevant to this case.

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But Plaintiff never sought reconsideration of Judge Humetewa’s ruling on this issue and

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does not explain why the Court should revisit it now. Because Plaintiff did not serve timely

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requests for production concerning the texts, Judge Humetewa resolved this issue after

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months of dispute, and the discovery period has long since closed, the Court will not reopen

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discovery now and require production of additional text messages.

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Plaintiff also “objects to and moves to strike” this new evidence. Doc. 161 at 1. This
motion is improper and is accordingly denied. See LRCiv 7.2(m).
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IT IS ORDERED:

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Plaintiff’s motion for reconsideration (Doc. 153) is denied.

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Plaintiff’s objection and motion for leave to file a reply (Doc. 161) is denied.

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Plaintiff’s request for additional discovery of text messages is denied.

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Dated this 27th day of September, 2019.

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