Witte v. Wells Fargo Home Mortgage et al

Filing 38

ORDER signed by District Judge Kimberly J. Mueller on 11/07/17 DENYING 34 Motion for Reconsideration. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS WITTE, 12 13 14 15 No. 2:16-cv-00691-KJM-EFB Plaintiff, v. ORDER WELLS FARGO HOME MORTGAGE; WACHOVIA MORTGAGE; WELLS FARGO BANK, N.A., 16 Defendants. 17 18 This wrongful foreclosure action is before the court on pro se plaintiff Thomas 19 Witte’s motion for reconsideration. Mot., ECF No. 34. Plaintiff sued Wells Fargo, N.A. in April 20 2016. ECF No. 1.1 A month later, Wells Fargo moved to dismiss, arguing the case was barred by 21 res judicata because plaintiff brought the same claims against Wells Fargo in state court. 22 ECF No. 8. The magistrate judge, having judicially noticed the relevant state court proceedings, 23 agreed. ECF No. 30 (issued Feb. 23, 2017). On March 28, 2017, over plaintiff’s objection, this 24 court adopted the magistrate judge’s recommendation to dismiss plaintiff’s complaint and closed 25 this case. Prior Order, ECF No. 32; Judgment, ECF No. 33. Twenty-seven days later, on April 26 27 28 1 Plaintiff names three separate defendants, yet each defendant is a single entity, Wells Fargo Bank, N.A. See Order, ECF No. 30 at 5 n.4. 1 1 24, 2017, plaintiff moved this court to reconsider its prior order. Mot., ECF No. 34. Wells Fargo 2 opposed. ECF No. 35. Plaintiff filed a reply. ECF No. 36. For the following reasons, the court 3 DENIES plaintiff’s motion. 4 A party may move to “alter or amend a judgment” within twenty-eight days of the 5 entry of the judgment. Fed. R. Civ. P. 59(e). Although the Rule does not list specific grounds for 6 such a motion, the Ninth Circuit has said that a Rule 59(e) motion may be granted if “(1) the 7 district court is presented with newly discovered evidence, (2) the district court committed clear 8 error or made an initial decision that was manifestly unjust, or (3) there is an intervening change 9 in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). The 10 court has “wide discretion” when considering such a motion. Turner v. Burlington N. Santa Fe 11 R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). The rule provides “an ‘extraordinary remedy, to 12 be used sparingly in the interests of finality and conservation of judicial resources.’” Kona 13 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting James Wm. Moore et 14 al., Moore's Federal Practice § 59.30[4] (3d ed. 2000)); see also Above the Belt, Inc. v. Mel 15 Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (emphasizing a party moving for 16 reconsideration should not ask the court “to rethink what the Court has already thought 17 through.”). 18 Here, plaintiff’s reconsideration request identifies no newly discovered evidence, 19 intervening changes in the law, or any manifest injustice. See generally Mot. Rather, plaintiff 20 simply restates why he believes res judicata should not bar his claims and faults the magistrate 21 judge for judicially noticing the relevant state court proceedings. See id. at 3-12. 22 contends that considering outside material effectively transformed the dismissal proceeding into a 23 summary judgment proceeding and deprived plaintiff of his right to meaningfully oppose. See id. 24 at 15. Plaintiff has misconstrued the applicable judicial notice rules and has raised no grounds 25 warranting reconsideration here. 26 ///// 27 ///// 28 ///// 2 Plaintiff 1 Plaintiff’s motion for reconsideration is DENIED. 2 IT IS SO ORDERED. 3 This resolves ECF No. 34. 4 DATED: November 7, 2017. 5 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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