Wright v. General Motors Acceptance Corporation et al

Filing 102

ORDER Denying 98 Motion for Reconsideration. Signed by Judge Jeffrey T. Miller on 6/5/2012. (knb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RODERICK WRIGHT,

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CASE NO. 09cv2666 JM(AJB)
Plaintiff,

ORDER DENYING MOTION FOR
RECONSIDERATION

vs.
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GENERAL MOTORS ACCEPTANCE
CORPORATION,
Defendant.

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Defendant Ally Financial Inc., formerly known as GMAC, erroneously sued as General Motors

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Acceptance Corporation (“Ally” or “GMAC”), moves, pursuant to Federal Rule of Civil Procedure

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60(b), for reconsideration of this court’s April 23, 2012 Order Denying Defendant’s Motion for

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Attorney’s Fees (“Order”). Plaintiff opposes the motion for reconsideration. Pursuant to Local Rule

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7.1(d)(1), this matter is appropriate for decision without oral argument.

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Reconsideration is generally appropriate “if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law. . . . There may also be other, highly unusual

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circumstances warranting reconsideration." School Dist. No. 1J, Multnomah County, Oregon v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted). Rule 60(b) “provides for

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reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly

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discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6)

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‘extraordinary circumstances' which would justify relief.” Fuller v. M.G. Jewelry, 950 F.2d 1437,
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09cv2666

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1442 (9th Cir. 1991).

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Here, Ally seeks to resubmit a legible copy of the attorney’s fees provision originally rejected

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by the court. Ally argues that its failure to submit a legible copy of the attorney’s fees provision was

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the result of counsel’s mistake or excusable neglect. See United States v. Sparks, 685 F.2d 1128, 1130

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(9th Cir. 1982) (a party must demonstrate “extraordinary circumstances” to obtain relief from a

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judgment). Counsel declares that he was unaware that the attorney’s fees provision was illegible.

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(Kemp Decl. ¶2-3).

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The court notes, moreover, that Ally has mischaracterized the illegibility of the attorney’s fees

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exhibit by suggesting it did not realize the copies were “difficult to read.” (Motion at p.2:7). Ally’s

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implication that the copies could have been read, perhaps with a little more diligence from the court,

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is egregious. Not only was the print excruciatingly small, but when the court pored over the copies

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with a magnifying glass the enlarged images were still blurred and illegible. As it turns out, mush

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magnified is still mush.

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The court denies the Rule 60(b) motion for several reasons. First, Ally fails to demonstrate

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the existence of any newly discovered evidence, clear error, intervening change in controlling law or

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unusual circumstance warranting reconsideration. Second, it is incumbent upon every party to ensure

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the court receives legible copies of, at least, critical documents. See Fed.R.Civ.P. 11. A party’s

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failure to review critical documents prior to filing, does not, without more, constitute excusable

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neglect.1 Third, the Order denying attorney’s fees was also based on the ground that attorney’s fees

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are not recoverable under Davis v. Ford Motor Co., 179 Cal.App.4th 581 (2009). In its motion, Ally

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sets forth no argument contrary to Davis.

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reconsideration of the Order.

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///

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Accordingly, there are no grounds warranting

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The court notes that Ally filed the same illegible copy on two separate occasions. (Ct. Dkt.
65-3, Exh. A ¶3(c); 68-2, Exh. A ¶3(c)). Plaintiff also brought the defect to Ally’s attention in its
opposition to the original motion for attorney’s fees. (Ct. Dkt. 93). Ally, alerted to this defect by
Plaintiff, did not address the issue in its reply brief. (Ct. Dkt. 95).
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09cv2666

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In sum, the motion for reconsideration is denied.

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IT IS SO ORDERED.

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DATED: June 5, 2012

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Hon. Jeffrey T. Miller
United States District Judge

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cc:

All parties

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09cv2666