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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS WITTE,

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No. 2:16-cv-00691-KJM-EFB

Plaintiff,
v.

ORDER

WELLS FARGO HOME MORTGAGE;
WACHOVIA MORTGAGE; WELLS
FARGO BANK, N.A.,

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Defendants.

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This wrongful foreclosure action is before the court on pro se plaintiff Thomas
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Witte’s motion for reconsideration. Mot., ECF No. 34. Plaintiff sued Wells Fargo, N.A. in April
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2016. ECF No. 1.1 A month later, Wells Fargo moved to dismiss, arguing the case was barred by

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res judicata because plaintiff brought the same claims against Wells Fargo in state court.
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ECF No. 8. The magistrate judge, having judicially noticed the relevant state court proceedings,
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agreed. ECF No. 30 (issued Feb. 23, 2017). On March 28, 2017, over plaintiff’s objection, this
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court adopted the magistrate judge’s recommendation to dismiss plaintiff’s complaint and closed
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this case. Prior Order, ECF No. 32; Judgment, ECF No. 33. Twenty-seven days later, on April
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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.
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24, 2017, plaintiff moved this court to reconsider its prior order. Mot., ECF No. 34. Wells Fargo

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opposed. ECF No. 35. Plaintiff filed a reply. ECF No. 36. For the following reasons, the court

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DENIES plaintiff’s motion.

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A party may move to “alter or amend a judgment” within twenty-eight days of the

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entry of the judgment. Fed. R. Civ. P. 59(e). Although the Rule does not list specific grounds for

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such a motion, the Ninth Circuit has said that a Rule 59(e) motion may be granted if “(1) the

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district court is presented with newly discovered evidence, (2) the district court committed clear

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error or made an initial decision that was manifestly unjust, or (3) there is an intervening change

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in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). The

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court has “wide discretion” when considering such a motion. Turner v. Burlington N. Santa Fe

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R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). The rule provides “an ‘extraordinary remedy, to

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be used sparingly in the interests of finality and conservation of judicial resources.’” Kona

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Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting James Wm. Moore et

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al., Moore's Federal Practice § 59.30[4] (3d ed. 2000)); see also Above the Belt, Inc. v. Mel

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Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (emphasizing a party moving for

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reconsideration should not ask the court “to rethink what the Court has already thought

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through.”).

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Here, plaintiff’s reconsideration request identifies no newly discovered evidence,

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intervening changes in the law, or any manifest injustice. See generally Mot. Rather, plaintiff

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simply restates why he believes res judicata should not bar his claims and faults the magistrate

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judge for judicially noticing the relevant state court proceedings. See id. at 3-12.

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contends that considering outside material effectively transformed the dismissal proceeding into a

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summary judgment proceeding and deprived plaintiff of his right to meaningfully oppose. See id.

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at 15. Plaintiff has misconstrued the applicable judicial notice rules and has raised no grounds

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warranting reconsideration here.

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Plaintiff

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Plaintiff’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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This resolves ECF No. 34.

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DATED: November 7, 2017.

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UNITED STATES DISTRICT JUDGE

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