John Baker v. Cottrell, Inc

Filing 75

ORDER Denying Defendant's 71 Application for Reconsideration, signed by District Judge Dale A. Drozd on 2/12/2018. (Within twenty-one days of service of this order, the parties are directed to email Renee Gaumnitz at [e-mail] to schedule pre-trial conference and trial dates.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN BAKER,

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Plaintiff,

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No. 1:16-cv-00840-DAD-SAB

ORDER DENYING DEFENDANT’S
APPLICATION FOR RECONSIDERATION

v.
COTTRELL, INC.,

(Doc. No. 71)

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Defendant.

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This matter is before the court on defendant’s motion for reconsideration. (Doc. No. 71.)

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For the reasons that follow, defendant’s motion will be denied.
The factual background of this case has been addressed in prior orders of this court and

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need not be repeated here. On December 29, 2017, the court issued an order granting in part and

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denying in part defendant’s motion for summary judgment. (Doc. No. 69.) On January 19, 2018,

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defendant filed the instant motion, seeking reconsideration of the December 29, 2017 order under

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Rule 60(b) of the Federal Rules of Civil Procedure. (Doc. No. 71.) In the alternative, defendant

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requests leave of court to file a second motion for summary judgment. (Id.)
Federal Civil Procedure Rule 60(b)(1) provides that “[o]n motion and upon such terms as

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are just, the court may relieve a party. . . from a final judgment, order, or proceeding” for

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“mistake, inadvertence, surprise, or excusable neglect.” “The law in this circuit is that errors of

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law are cognizable under Rule 60(b).” Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th

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Cir. 1982).

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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances” exist. Harvest v. Castro,

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531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing

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reconsideration under Rule 60(b)(1)–(5)). The moving party “must demonstrate both injury and

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circumstances beyond his control.” Id. (internal quotation marks and citation omitted). Further,

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Local Rule 230(j) requires, in relevant part, that in moving for reconsideration of an order

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denying or granting a prior motion, a party must show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown” previously, “what

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other grounds exist for the motion,” and “why the facts or circumstances were not shown” at the

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time the substance of the order which is objected to was considered.
In the instant motion, defendant moves for reconsideration on the ground of “mistake” and

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raises a new argument why the granting of summary judgment in its favor is appropriate.

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Defendant now asserts that there is no genuine dispute of material fact regarding whether the

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ladder was new when plaintiff purchased it because plaintiff alleged as much in his complaint.

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(See Doc. No. 1 (“Compl.”) at ¶ 12 (“Plaintiff is informed and believes and thereon alleges that .

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. . the ladder was not new as had been represented to Plaintiff by Defendants at the time of

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delivery”); Doc. No. 71 at 3.) The court construes this as an argument that the allegations of

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plaintiff’s complaint constitutes a binding judicial admission that the ladder in question was not

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new.

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“A district court has discretion to decline to consider an issue raised for the first time in a

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motion for reconsideration.” Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 1142 n.6

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(9th Cir. 1999); see also Reliance Ins. Co. v. Doctors Co., 299 F. Supp. 2d 1131, 1154 (D. Haw.

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2003) (“In failing to raise this argument at summary judgment, [defendant] waived its right to

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assert the argument following the Court’s ruling on the summary judgment motions, in the instant

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motion for reconsideration”), aff’d, 132 Fed. App’x 730 (9th Cir. 2005). The court has reviewed

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defendant’s Memorandum in Support of its Motion for Summary Judgment and finds that
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nowhere did defendant raise the argument that the allegation in plaintiff’s complaint constituted a

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judicial admission of any sort. (See Doc. No. 48.) Moreover, defendant has offered no

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explanation as to why this argument was not raised in the first instance. See L.R. 230(j). The

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court declines to exercise its discretion to consider this new argument. Therefore, defendant’s

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application for reconsideration will be denied.

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In the alternative, defendant requests leave of court to file a second motion for summary

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judgment. “[D]istrict courts have discretion to entertain successive motions for summary

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judgment.” Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010); Culley v. Lincare Inc.,

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No. 2:15-cv-00081-MCE-CMK, 2017 WL 1477045, at *1 (E.D. Cal. Apr. 25, 2017). In moving

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for summary judgment, defendant intentionally opted not to rely on the testimony of its expert.

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However, defendant now concedes in the instant motion that “[i]n retrospect, Cottrell should have

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included such evidence from its expert.” (Doc. No. 71 at 7.) This case has been pending before

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the court since June of 2016. Pursuant to the scheduling order, the last day for filing dispositive

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law and motion was September 25, 2017. (Doc. Nos. 15 & 24.) Law and motion has now closed

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in this action. The court is not persuaded that defendant’s change of heart regarding its litigation

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strategy constitutes good cause to re-open law and motion for purposes of allowing defendant to

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file a second motion for summary judgment. Accordingly, the court declines defendant’s

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alternative request.

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For these reasons,

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Defendant’s motion for reconsideration (Doc. No. 71) is denied; and

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Within twenty-one days of service of this order, the parties are directed to email

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Renee Gaumnitz at [e-mail] to schedule pre-trial conference

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and trial dates.

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IT IS SO ORDERED.
Dated:

February 12, 2018
UNITED STATES DISTRICT JUDGE

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