Seifert v. Werner
Filing
149
ORDER signed by District Judge Kimberly J. Mueller on 6/7/11 ORDERING that Plaintiff's Application to Reconsider the 3/3/11 order denying Plaintiff's Motion to vacate the appointment of the arbitrator 142 is DENIED. (Mena-Sanchez, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KATHLEEN SEIFERT,
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Plaintiff,
vs.
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NO. CIV. S-08-0998 KJM-JFM
RICHARD WERNER,
Defendant.
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ORDER
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This matter is before the court on plaintiff’s application to reconsider the March
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3, 2011 order denying plaintiff’s motion to vacate the appointment of the arbitrator (the
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“Order”). ECF 141. For the reasons set forth below, the application is DENIED.
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I. BACKGROUND
This diversity case has been stayed since January 21, 2009, to allow mediation
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and, if that was unsuccessful, arbitration in accordance with the contract applicable in this case.
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ECF 80. On September 21, 2009, the court directed the parties to select an arbitrator from five
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names nominated by the court and then proceed to arbitration. ECF 98. Plaintiff twice moved to
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return the matter from arbitration to this court. ECF 102; ECF 120. The court has denied both
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requests and in each instance confirmed the stay in favor of arbitration. ECF 112; ECF 128.
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On December 23, 2010, plaintiff filed a motion to vacate the appointment of the
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arbitrator, John Ball, setting hearing for February 7, 2011. ECF 132. Defendants filed an
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opposition on January 14, 2011. ECF 135. On February 18, 2011, after the hearing was reset to
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March 2, 2011, the court issued a minute order submitting plaintiff’s motion without oral
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argument. ECF 137, 138. On March 22, 2011, the court denied plaintiff’s motion to vacate the
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referral to the arbitrator. ECF 141. On April 6, 2011, plaintiff moved the court to reconsider its
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denial of plaintiff’s motion to vacate the referral to the arbitrator, or in the alternative, reopen the
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original motion to allow for plaintiff to file a reply. ECF 142.
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II. ANALYSIS
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Local Rule 230(j) provides, in pertinent part, that a party may seek rehearing of a
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motion through an application to the court by showing “what new or different facts or
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circumstances are claimed to exist which did not exist or were not shown upon such prior
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motion, or what other grounds exist for the motion” and “why the facts or circumstances were
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not shown at the time of the prior motion.” Plaintiff provides the following as new “facts or
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circumstances”: (1) the arbitrator was not legally permitted to contest his disqualification, and
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(2) defendant Werner is not admitted to the California bar and therefore the court should not
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have considered filings containing his signature. ECF 142 at 6-7.
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Plaintiff contends that the court should not have decided the motion to vacate
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appointment of the arbitrator before plaintiff’s reply brief was due. ECF 142 at 5. Plaintiff
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states, “[o]n February 18, 2011 [the district judge] ordered the motion submitted on the record. I
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decided filing any reply after the court order would be improper, and refrained from presenting
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relevant evidence and legal argument that might have convinced the court to grant the motion.”
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Id. The court did not decide plaintiff’s motion until more than two months after the opposition
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brief was filed and more than a month after the motion was submitted without oral argument.
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While plaintiff is correct that timing for the submission of a reply is linked to a motion hearing,
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plaintiff does not explain why she incorrectly thought that once the court indicated it would
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decide the motion on the briefs she was barred from submitting a reply, or seeking leave to do
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so. See Local Rule 230(g). Reconsideration is an “extraordinary remedy, to be used sparingly in
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the interests of finality and conservation of judicial resources.” Kona Enterprises, Inc. v. Estate
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of Bishop, 229 F.3d 877, 889 (9th Cir. 2000) (quotation omitted). Reconsideration may not, as
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plaintiff would have it, be used “to raise arguments or present evidence for the first time when
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they could reasonably have been raised earlier in the litigation.” Id. Plaintiff’s failure to submit
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a timely reply previously also is not an adequate justification for reconsideration. Accordingly,
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plaintiff’s application for reconsideration is DENIED.
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IT IS SO ORDERED.
DATED: June 7, 2011.
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UNITED STATES DISTRICT JUDGE
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