Hicks v. Lowe's HIW, Inc.

Filing 48

ORDER signed by Judge Kimberly J. Mueller on 3/28/2014 ORDERING 45 Motion for Reconsideration is DENIED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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No. 2:12-CV-01883-KJM-KJN

CARDTE HICKS,

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Plaintiff,

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v.

ORDER

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LOWE’S HIW, INC.,
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Defendant.

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Cardte Hicks (“plaintiff”) moves for reconsideration of this court’s March 26,

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2014 order, ECF No. 44, denying her motion in limine, ECF No. 35, to exclude the expert

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testimony of defense witness Geoffrey Miller, M.D. ECF No. 45. Lowe’s HIW, Inc.

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(“defendant”) filed an opposition the same day. ECF No. 47. Finding the matter suitable for

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decision on the papers, the court DENIES plaintiff’s concomitant request for oral argument.

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ECF No. 46. For the reasons below, the motion for reconsideration is DENIED.

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I.

STANDARD
District courts “possess[] the inherent procedural power to reconsider, rescind,

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or modify an interlocutory order for cause seen by it to be sufficient.” City of L.A., Harbor

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Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citations and internal

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quotation marks omitted). A motion for reconsideration, however, “should not be granted, . . .
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unless the district court is presented with newly discovered evidence, committed clear error, or

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if there is an intervening change in the controlling law.” 389 Orange St. Partners v. Arnold,

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179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993)). Clear error occurs where “the reviewing court . . . is left with the definite and

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firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470

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U.S. 564, 573 (1985) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

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Because they “are generally disfavored,” Am. Rivers v. N.O.A.A. Fisheries, No.

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CV-04-00061-RE, 2006 WL 1983178, at *2 (D. Or. Jul. 14, 2006) (citing Fuller v. M.G.

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Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)), such motions are properly granted only in

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“highly unusual circumstances,” 389 Orange St. Partners, 179 F.3d at 665. A motion for

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reconsideration “may not be used to present new arguments or evidence that could have been

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raised earlier,” Am. Rivers, 2006 WL 1983178, at *2 (citing Fuller, 950 F.2d at 1442), or to

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“ask the court to rethink matters already decided,” id. (citing Motorola, Inc. v. J.B. Rodgers

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Mech. Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003)).

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II.

ANALYSIS
Plaintiff requests reconsideration because the court “may have misunderstood”

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the basis of the motion. Mot. for Recons. (“Mot.”) at 1, ECF No. 45. She “now realizes her

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moving papers may have been unclear as to the fact that Plaintiff never received the Expert

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Disclosure that Defendant allegedly mailed to Plaintiff.” Id. at 2 (emphasis in original).

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Continuing, she explains that “she was not asking for exclusion of Defendant’s expert based

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merely on the technical defect of not filing it with the court, but on the fact that Plaintiff was

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never served with the expert disclosure.” Id. at 3. Accompanying the motion, plaintiff’s

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counsel now files a declaration stating that his “office did not receive a Disclosure of Expert

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Witness Information from Defendant” and that counsel “did not become aware of the fact that

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Defendant planned to use Dr. Miller as an expert witness until” filing of the Joint Pretrial

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Statement. Masuda Decl. ¶ 2, ECF No. 45.

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Plaintiff does not argue there is “newly discovered evidence” or “an intervening
change in the controlling law” and thus necessarily asserts “clear error.” 389 Orange St.
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Partners, 179 F.3d at 665. Despite any ambiguity in the language of plaintiff’s moving papers,

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however, the court is not “left with the definite and firm conviction that a mistake has been

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committed.” Anderson, 470 U.S. at 573. Rather, in light of defense counsel’s declaration

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attesting to timely service of its Expert Witness Disclosure, Sharaga Decl. ¶ 4, ECF No. 38,

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and the accompanying proof of service, id. Ex. B, the court finds that the motion was correctly

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decided. See Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1254 n.3 (9th Cir. 2006) (“‘The law of

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this circuit is clear. We go by the “mail box rule.” Proper and timely mailing of a document

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raises a rebuttable presumption that the document has been timely received by the addressee.’”

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(quoting Lewis v. United States, 144 F.3d 1220, 1222 (9th Cir. 1998))). Plaintiff’s counsel’s

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declaration, insufficient by itself to rebut the presumption, is “evidence that could have been

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raised earlier” but was not. Am. Rivers, 2006 WL 1983178, at *2 (citing Fuller, 950 F.2d at

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1442). It will not be considered.

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III.

CONCLUSION

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For the foregoing reasons, defendant’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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DATED: March 28, 2014.

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UNITED STATES DISTRICT JUDGE

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