Faulk v. Sears Roebuck and Co

Filing 94

ORDER by Judge Yvonne Gonzalez Rogers denying 92 Motion for Leave to File Motion for Reconsideration (fs, COURT STAFF) (Filed on 5/17/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN FAULK,

United States District Court
Northern District of California

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Plaintiff,

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vs.

Case No.: 11-CV-02159 YGR
ORDER DENYING MOTION OF PLAINTIFF FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION

SEARS ROEBUCK AND CO.,

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Defendant.

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Plaintiff Kevin Faulk has filed a Motion for Leave to File a Motion for Reconsideration, or

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in the Alternative, a Motion for Leave to File a Motion to Alter or Amend the Order Denying

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Plaintiff’s Motion for Class Certification.1 Having carefully considered the motion, the Court’s

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Order, for the reasons set forth below, the Court hereby DENIES the Motion.

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Local Rule 7-9 provides that a party requesting leave to file a motion for reconsideration must
specifically show:
(1) That at the time of the motion for leave, a material difference in fact or
law exists from that which was presented to the Court before entry of the
interlocutory order for which reconsideration is sought. The party also must show
that in the exercise of reasonable diligence the party applying for reconsideration did
not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after
the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive
legal arguments which were presented to the Court before such interlocutory order.
Civ. L. R. 7-9. As best the Court can tell, Plaintiff’s motion relies upon the third ground:
“manifest failure by the Court to consider material facts or dispositive legal arguments which were
presented to the Court.”

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Plaintiff bases his motion on footnote 11 in the Court’s Order, which Plaintiff believes fails

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to address the measure of damages available under the California Song-Beverly Act and California

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Unfair Competition Law (“UCL”):

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United States District Court
Northern District of California

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Plaintiff seeks reconsideration of the opinion on two grounds. First, Named Plaintiff
identified the injury and measure of damages available under Song Beverly as the
purchase price of the plan, citing Sanbrook v. Office Depot, 2009 U.S. Dist. LEXIS
30857 (N.D. Ca. 2009). Second, omitted from the opinion’s discussion (in FN 11
cited above) of the damages sought by Plaintiff was section (c) of the Prayer for
Relief, in which Plaintiff requested “an order awarding restitution and disgorgement
of all charges paid by Plaintiff and the Class Members and/or ill-gotten gains
realized by Sears as a direct result of Sears’ unlawful, unfair and/or fraudulent
business practices complained of herein.” … Plaintiff will explain why this type of
relief makes his claim under the UCL’s unlawful prong amenable to certification.
Because the decision neither considers the injury and types of damages available
under these two claims nor whether those issues can be tried on a common basis,
Plaintiff respectfully seeks reconsideration of the decision.
(Motion at 3-4.)

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As to the first ground, Plaintiff’s Motion for Class Certification did not identify the

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damages suffered by purchasers of tires and tire warranties from Sears as “the purchase price of the

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plan” or in support, cite to Sanbrook v. Office Depot, 07-CV-05938, Dkt. No. 131 at 8 (N.D. Cal.

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Mar. 30, 2009). Rather, in his Reply brief, Plaintiff quoted a passage from Sanbrook in which

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Judge Whyte identified “the purchase price of [Office Depot’s Performance Protection] Plan” as the

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injury suffered by each class member in Sanbrook. If the Court did not consider certain facts or

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arguments, it was because Plaintiff did not present those facts or arguments to the Court. That is

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not a basis for the Court to grant leave to file a motion for reconsideration.

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As to the second ground, it appears that Plaintiff seeks leave to present an argument that

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was previously available but not advanced in his earlier motion by arguing, albeit mistakenly, that

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the Court failed to consider facts alleged in his complaint with respect to the remedies sought under

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the UCL. Curiously, Plaintiff cites to the Court’s discussion of Plaintiff’s Song-Beverly Act claim

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to make this argument. The Court’s discussion of his UCL claim specifically addressed the

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remedies sought under the UCL: “[t]he damages Faulk seeks under the UCL include ‘an order

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awarding restitution and disgorgement…’” (Dkt. No. 91 at 16 n.15.)

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Accordingly, with respect to the pending motion, Plaintiff has failed to present a basis for

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the Court to permit him to file a motion for the Court to reconsider this issue. Plaintiff’s Motion for

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Leave to File a Motion for Reconsideration, or in the Alternative, a Motion for Leave to File a

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Motion to Alter or Amend the Order Denying Plaintiff’s Motion for Class Certification is DENIED.

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This terminates Docket No. 92.

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IT IS SO ORDERED.

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Date: May 17, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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