Shalaby v. Bernzomatic et al

Filing 168

ORDER Denying Plaintiff's Motion to Amend Court's Order (Doc. No. 167 ). Signed by Judge Anthony J. Battaglia on 1/29/2021. (jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANDREW SHALABY,
Plaintiff,

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Case No.: 3:11-cv-00068-AJB-DHB
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND COURT’S
ORDER

v.
BERNZOMATIC, et al.,
Defendants.

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(Doc. No. 167)

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Andrew Shalaby (“Plaintiff”) seeks to file a “motion to amend sanction order, Doc.

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No. 161, re omitted Rule 11 argument” pursuant to Federal Rule of Civil Procedure 59

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(“Rule 59”). The Court will treat this Rule 59 motion as a motion for reconsideration. For

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the reasons detailed below, the motion is DENIED. 1

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I.

LEGAL STANDARD

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Motions for reconsideration should not be frequently made or freely granted. See

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generally Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir.

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1981). “[T]he major grounds that justify reconsideration involve an intervening change of

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Although Plaintiff has filed a notice of appeal of the Court’s orders before he filed the instant motion,
the Ninth Circuit has stated that courts retain jurisdiction to rule on a Rule 59 motion even though an
appeal has been previously filed. See Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988).

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3:11-cv-00068-AJB-DHB

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controlling law, the availability of new evidence, or the need to correct a clear error or

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prevent manifest injustice.” Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364,

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369 n.5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d 713,

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715 (9th Cir. 1970)). Courts construing Rule 59(e) have noted that a motion to reconsider

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is not a vehicle permitting the unsuccessful party to “rehash” arguments previously

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presented, or to present “contentions which might have been raised prior to the challenged

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judgment.” Costello v. United States, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991) (citing

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cases). These holdings “reflect[] district courts’ concerns for preserving dwindling

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resources and promoting judicial efficiency.” Id.

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II.

DISCUSSION

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A.

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Plaintiff has not provided any adequate ground for reconsideration. As the basis for

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his Rule 59 motion, Plaintiff states, “[t]his Court’s January 13, 2021 order inadvertently

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overlooked Plaintiff’s argument that sanctions may not be sought without complying with

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the safe harbor requirements of Rule 11.” (Doc. No. 167 at 3.) Plaintiff’s position is yet

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another attempt to reargue the merits of whether sanctions are appropriate, even though

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that issue has already been decided by the Court. While Plaintiff believes the Court’s

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January 13, 2021 order failed to address Plaintiff’s argument regarding Rule 11’s safe

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harbor provision, the purpose of the January 13, 2021 order was exclusively to decide the

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amount of attorneys’ fees to be awarded to Defendant. Indeed, recognizing that Plaintiff’s

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Rule 11 argument had already been previously raised and rejected, the Court remarked in

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the January 13, 2021 order, “the majority of Plaintiff’s opposition is an attempt to reargue

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points already ruled upon by the Court on multiple occasions.” (Doc. No. 161 at 2.) As

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such, the Court did not need to address Plaintiff’s Rule 11 safe harbor argument, which

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went to the merits of whether sanctions were warranted; the Court only needed to address

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the amount of attorneys’ fees Defendant could recover.

Motion for Reconsideration

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The separate question of whether sanctions were warranted in the first instance was

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decided in the Court’s August 15, 2019 order granting sanctions, wherein the Court clearly
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stated, “[c]ourts have the inherent power to sanction parties that willfully disobey a court

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order.” (Doc. No. 131 at 3 (citing Broemer v. U.S., No. CV 01-04340 MMM (RZx), 2002

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WL 3644940, at *1 (C.D. Cal. Jan. 9, 2002)). Pursuant to this inherent power—and with

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no mention of Rule 11—the Court held on August 15, 2019 that Plaintiff had defied the

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Court’s prefiling order, and granted monetary sanctions in favor of Defendant in the form

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of reasonable attorneys’ fees. (Doc. No. 131 at 3.) The Court then directed Defendant to

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file a motion for attorneys’ fees and costs. (Id.) After review of Defendant’s motion, the

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Court determined Defendant failed to provide any details that would allow the Court to

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assess whether the requested attorneys’ fees and costs were reasonable. (Doc. No. 148 at

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4–5.) Accordingly, the Court requested supplemental briefing detailing Defendant’s fees.

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(Id.) The Court also permitted Plaintiff to respond to the supplemental briefing. (Id.) Now,

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Plaintiff argues that the Court failed to address an argument contained in this response. But

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the Court squarely stated it was not entertaining arguments already rejected. (Doc. No. 161

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at 2.) The Court’s grant of a response was not an invitation for Plaintiff to reargue whether

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sanctions were appropriate under Rule 11, as that issue had already been decided.

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In sum, Plaintiff has not established an “intervening change of controlling law, the

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availability of new evidence, or the need to correct a clear error or prevent manifest

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injustice” required for reconsideration. See Hodel, 882 F.2d at 369 n.5. Plaintiff’s motion

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is hereby DENIED.

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B.

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In the alternative, Plaintiff requests a reduction of sanctions in the event the Court

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denies the motion for reconsideration. (Doc. No. 167 at 5.) Plaintiff states that during the

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past year, his mother fell permanently ill and Plaintiff “now has to pay for her care and

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housing. At the same time, the COVID-19 pandemic has taken a toll on Shalaby financially.

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For this reason, Shalaby is respectfully requesting that the Court reduce the sanction

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amount to $14,000 and afford me until 2/1/2022 to pay the full amount.” (Id.) While the

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Court is sympathetic to these unexpected circumstances, Plaintiff’s request is denied

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because he has not sufficiently established financial hardship. In particular, Plaintiff’s
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Request for Reduction of Sanctions

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declaration filed in support of this request is wholly unsupported by any financial records

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or documentary evidence showing expenses incurred as a result of Plaintiff’s unanticipated

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hardship or inability to pay. Should Plaintiff renew this argument in opposition to

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Defendant’s motion for appellate cost bond, Plaintiff must provide documentary proof

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demonstrating financial hardship. Such financial records may be lodged with the Court for

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in-camera review.

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III.

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CONCLUSION
For all the reasons stated above, Plaintiff’s motion for reconsideration is DENIED,

and Plaintiff’s request for a reduction of sanctions is DENIED. (Doc. No. 167.)

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IT IS SO ORDERED.
Dated: January 29, 2021

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