Bever v. Cal-Western Reconveyance Corp. et al

Filing 82

ORDER on Plaintiff's Motions to Alter or Amend Orders 80 , 81 , signed by District Judge Anthony W. Ishii on 10/31/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GLENN W. BEVER,

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CASE NO. 1:11-CV-1584 AWI SKO
Plaintiff

v.
CAL-WESTERN RECONVEYANCE
CORP., et al.,

ORDER PLAINTIFF’S MOTIONS TO
ALTER OR AMEND ORDERS
(Doc. Nos. 80, 81)

Defendants

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This is a mortgage related case brought by Plaintiff Glenn Bever (“Bever”). On October 2,

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2013, the Court substantially granted a motion to dismiss by Defendants Citimortgage, Inc. and

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MERS. See Doc. No. 75. The Court dismissed all claims against MERS and found that there was

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only one plausible claim alleged against Citi, which was a violation of Civil Code § 2923.5. See

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id. Also on October 2, 2013, the Court granted Bever’s motion for a preliminary injunction based

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on the alleged violation of § 2923.5. See Doc. No. 76. As part of the injunction order, the Court

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required Bever to pay a $2,800 security, and then pay a $1,400 security on the 11th of each month

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that this case remains pending.

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On October 30, 2013, Bever filed two Rule 59(e) motions to alter or amend. One of the

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motions requests that the Court alter the injunctive order and eliminate the requirement of monthly

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security. See Doc. No. 80. The other motion requests that the Court reconsider its analysis

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regarding the quiet title, RESPA, and unjust enrichment causes of action. See Doc. No. 81.

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Federal Rule of Civil Procedure 59(e) provides a mechanism for a court to alter, amend, or

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vacate a prior order. See Fed. R. Civ. Pro. 59(e); Hamid v. Price Waterhouse, 51 F.3d 1411, 1415

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(9th Cir. 1994); Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994). “While Rule 59(e) permits

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a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy,

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to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll v.

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Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890-

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91 (9th Cir. 2000). “A party seeking reconsideration must show more than a disagreement with

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the Court’s decision, and recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party=s burden.” United States v.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). “Rule 59(e) amendments are

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appropriate if the district court (1) is presented with newly discovered evidence, (2) committed

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clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003); Kona Enters.,

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229 F.3d at 890. This standard is a “high hurdle.” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir.

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2001). Rule 59(e) motions “may not be used to raise arguments or present evidence for the first

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time when they could reasonably have been raised earlier in the litigation.” Carroll, 342 F.3d at

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945; Kona Enters., 229 F.3d at 890. Stated differently, Rule 59(e) “does not provide a vehicle for

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a party to undo its own procedural failures [or] allow a party to introduce new evidence or advance

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new arguments that could and should have been presented to the district court prior to the

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judgment.” Dimarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001).

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After considering Bever’s arguments, the Court will not alter or amend either the order of

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dismissal or the order for preliminary injunction. Bever attempts to either distinguish certain (but

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not all) cases cited by the Court, reiterates allegations from the Complaint that were considered by

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the Court, or makes arguments that could have been made during the pendency of the motions.

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Bever’s motions amount to little more than a disagreement with the Court’s orders. Because

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Bever has not done enough to meet the high burden of Rule 59(e), both of Bever’s Rule 59(e)

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motions will be denied. See Carroll, 342 F.3d at 945; Dimarco-Zappa, 238 F.3d at 34; Kona

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Enters., 229 F.3d at 890-91; Westlands Water, 134 F.Supp.2d at 1131.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Bever’s Rule 59(e) motion to alter or amend the preliminary injunction order (Doc. No.
80) is DENIED; and

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Bever’s Rule 59(e) motion to alter or amend the order of dismissal (Doc. No. 81) is
DENIED.

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IT IS SO ORDERED.
Dated: October 31, 2013
SENIOR DISTRICT JUDGE
DEAC_Signature-END:

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ciem0h3i

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