United States of America v. $229,850.00 in US Currency et al

Filing 29

ORDER denying 28 Motion for Reconsideration. Signed by Magistrate Judge Charles R Pyle on 10/20/14. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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vs.

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$229,850.00 in U.S. Currency,
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Defendant.
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Robert and Debra Osborne,
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Claimants.
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No. CV 13-1316-TUC-CRP
ORDER

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Pending before the Court is Claimants’ Motion for Reconsideration of Order Denying

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Motion to Dismiss. (Doc. 28). On September 25, 2014, the Court denied Claimants’ Motion

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to Dismiss which was based on Claimants’ argument that the Complaint in this matter was

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untimely filed. Although the Court agreed with Claimants that the Complaint was untimely

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filed by one day, the Court determined that the doctrine of equitable tolling properly applied

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to excuse the late filing. (Doc. 27).

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Whether to grant or deny a motion for reconsideration is within the discretion of the

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court. See Barber v. State of Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994). “Motions to

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reconsider are appropriate only in rare circumstances[.]” Defenders of Wildlife v. Browner,

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909 F.supp. 1342, 1351 (D. Ariz. 1995). “[A] motion for reconsideration should not be

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granted, absent highly unusual circumstances, unless the district court is presented with

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newly discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law.” 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)

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(citing School Dist. No. 1J, Multnomah County, Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993)). Motions for reconsideration should not be used for the purpose of requesting

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the court “‘to rethink what the court had already thought through—rightly or wrongly.’”

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Defenders of Wildlife, 909 F.Supp. at 1352 (quoting Above the Belt, Inc. v. Mel Bohannan

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Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)); see also Sullivan v. Faras-RLS Group,

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Ltd., 795 F.Supp. 305, 308-09 (D.Ariz. 1992) (same). Moreover, the Rules of Practice of the

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U.S. District Court for the District of Arizona, state that: “No motion for reconsideration of

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an Order may repeat any oral or written argument made by the movant in support of or in

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opposition to the motion that resulted in the Order. Failure to comply with this subsection

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may be grounds for denial of the motion.” LRCiv 7.2(g).

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Claimants take issue with the Court’s conclusion that equitable tolling excused the

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government’s delay in this case. Although Claimants agree with the Court’s statement of the

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standard for equitable tolling, they argue that the Court misapplied the standard in this case.

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As Claimants have recognized, a party is entitled to equitable tolling where “he shows ‘(1)

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that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

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stood in his way’ and prevented the timely filing.” Holland v. Florida, 560 U.S. 631, 649

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(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). (See Motion for

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Reconsideration, pp. 1-2) (citing September 25, 2014 Order, p. 17). Claimant’ Motion for

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Reconsideration focuses on their position that the government waited until what it

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determined was the last day to file the Complaint. According to Claimants, such conduct

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fails to establish good faith or diligence on the government’s part. Claimants contend that

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the government failed to make a showing that “circumstances arose requiring last minute

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compliance.” (Motion for Reconsideration, p. 2).

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In denying Claimants’ Motion to Dismiss, the Court specifically recognized

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Claimants’ argument that the government did not have to wait to file the Complaint until

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what it thought was the last day. (See Order, p. 19 (citing Reply (Doc. 20), p. 7)). The Court
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pointed out that had “this Court adopted the government’s position, the Complaint would

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have been timely.” (Order, p.19). In sum, the Court held that “[g]iven the government’s

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diligence and the extraordinary circumstance of the unsettled law on this issue,...the

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government is entitled to equitable tolling.” (Id.)

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Claimants’ Motion for Reconsideration essentially requests that the Court “‘rethink

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what the [C]ourt ha[s] already thought through–rightly or wrongly.’” Defenders of Wildlife,

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909 F.Supp. at 1351 (quoting Above the Belt, Inc., 99 F.R.D. at 101). As such, the Court

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declines to reconsider its September 25, 2014 determination. Accordingly,

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IT IS ORDERED that Claimants’ Motion for Reconsideration (Doc. 28) is DENIED.
DATED this 20th day of October, 2014.

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