HCC Life Insurance Company v. Conroy et al

Filing 81

ORDER denying 67 Motion for Reconsideration. Signed by Judge Roger T. Benitez on 1/23/2018. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

HCC LIFE INSURANCE COMPANY, an
Indiana corporation,
Plaintiff,

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v.
KEVIN CONROY; LINDA CONROY,

ORDER DENYING
PLAINTIFF'S APPLICATION FOR
RECONSIDERATION

[Doc. No. 67]

Defendants.

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Case No.: 3:15-cv-02897-BEN-BLM

AND RELATED COUNTERCLAIMS

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Now before the Court is Plaintiff HCC Life Insurance Company's ("HCC Life")

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Application for Reconsideration. HCC Life seeks reconsideration of the March 22, 2017

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Order denying Summary Judgment. For the reasons stated below, the Court DENIES the

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Application for Reconsideration.

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BACKGROUND and PROCEDURAL HISTORY

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On December 23, 2015, HCC Life, brought this diversity lawsuit against the

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Conroys. The Conroys answered the Complaint and filed their own counterclaims. On

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August 26, 2016, HCC Life filed a Motion for Summary Judgment which was denied,

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leading to the filing of the instant Application for Reconsideration based on "newly-

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discovered evidence."

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Ill

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LEGAL STANDARD

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The decision to grant or deny a motion for reconsideration is left to the sound

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discretion of the trial court. See Sch. Dist. No. JJ, Multnomah Cnty. v. AC and S, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993). Such motions are disfavored and absent exceptional

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circumstances, usually are only appropriate "if the district court (1) is presented with

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newly discovered evidence; (2) committed clear error or the initial decision was

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manifestly unjust; or (3) ifthere is an intervening change in controlling law." (Id.)

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In their motion, HCC Life does not maintain that there has been an intervening
change in controlling law. Nor do they argue that the Court committed clear error in its

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resolution of the summary judgment motion based on the evidence presented at that time.

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Rather, HCC Life contends reconsideration is appropriate on account of"newly

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discovered evidence." (Doc. No. 67 at 2.) Therefore, to prevail, HCC Life must

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establish first that the proffered testimony is indeed "newly discovered evidence" under

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Federal Rule of Civil Procedure 60(b)(2); second, HCC Life exercised due diligence to

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obtain the evidence; and third, the testimony is of such a magnitude that it would have

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changed the Court's ruling on the summary judgment motion. See Coastal Transfer Co.

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v. Toyota Motor Sales, Inc., 833 F.2d 208, 211 (9th Cir. 1987).

DISCUSSION

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1.

Newly Discovered Evidence

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Under the Federal Rules, evidence is not "newly discovered" if it was in the

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moving party's possession before judgment was rendered. Feature Realty, Inc. v. City of

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Spokane, 331F.3d1082, 1093 (9th Cir. 2003) (citing Coastal Transfer Co., 833 F.2d at

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212) (" ... [I]f [evidence] was in the possession of the party before the judgment was

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rendered it is not newly discovered and does not entitle the party to relief."). HCC Life

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argues the belatedly produced documents and deposition testimony constitute "newly

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discovered evidence" because it was not received until after the summary judgment

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motion was filed and fully briefed. (Doc. No. 67 at 6.)

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The fact that HCC Lifes' summary judgment motion was fully briefed before it

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conducted the depositions does not render the resulting testimony "newly discovered" for

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purposes of Rule 60(b)(2). It is the litigants' responsibility to introduce evidence for the

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court's consideration of summary judgment, whether in original or supplemental filings.

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See, e.g., Rossi v. Troy State Univ. 330 F. Supp.2d 1240, 1249-50 (M.D. Ala. 2002)

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(denying Rule 60(b )(2) motion because movant never requested leave to supplement its

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response to the summary judgment motion with new evidence while the motion was

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under consideration). Moreover, the Ninth Circuit has held that a party possessing

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evidence for as little as eight days prior to a court's summary judgment ruling could not

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invoke Rule 60(b)(2). (Id. at 1093.)
Here, HCC Life was in possession of the belatedly produced documents for over a

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month before the Court issued its ruling on March 22, 2017. Notably, by Wednesday,

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March 15, 2017, all of the plaintiffs scheduled depositions had been completed, leaving

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ample time to bring the "newly discovered evidence" to the Court's attention. (Doc. No.

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73.) Unfortunately, the docket does not reflect any effort to place the evidence before the

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Court. Furthermore, HCC Life's explanation for not supplementing its response or

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requesting an extension to submit additional evidence ("summary judgment was filed and

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briefing closed ... ") lacks support to justify the Court granting its request. See Fed. R.

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Civ. P. 56(t); (Doc. No. 67 at 6.)

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Therefore, the proffered documents and deposition testimony cannot be accepted

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as "newly discovered evidence," and HCC Life's request for relief pursuant to Rule

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60(b)(2) must be DENIED.

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2.

Due Diligence

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The fact that the documents and deposition testimony is not "newly discovered

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evidence" under the Federal Rules is enough to end the inquiry. However, this

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requirement is closely related to the second prong of due diligence, see Gonzalez-Pina v.

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Rodriguez, 407 F.3d 425, 433 (1st Cir. 2005). In the case at hand, HCC Life's lack of

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due diligence in obtaining the deposition testimony poses an additional bar to the relief

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sought.

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The Ninth Circuit spoke to the due diligence requirement in Coastal Transfer Co.

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In that case, the Ninth Circuit rebuked a Rule 60(b )(2) movant for its failure to exercise

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due diligence in discovering the inaccuracy of its own expert's testimony because other

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evidence the movant possessed prior to the district court's ruling could have revealed the

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inaccuracy. Coastal Transfer Co. 833 F.2d at 212. In other words, due diligence

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assumes at least some level of deductive reasoning in an active effort to discover

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evidence based on the knowledge and information already possessed by the litigants.

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Here, HCC Life's assertion that it exercised due diligence in obtaining the

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deposition testimony is not supported by the record and evidence before the Court. First,

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HCC Life's three requests to amend the scheduling order to extend the discovery

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deadline without once mentioning any discovery issues, late production or "newly

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discovered evidence" does not reflect due diligence. (Doc. Nos. 56, 59 and 63.)

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Second, HCC Life certainly could have deposed at a minimum Mr. and Mrs.

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Conroy well before their reply to Conroy's Response in Opposition to the summary

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judgment motion was due on November 21, 2016. See e.g., Martinez v. Wawona Frozen

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Foods, 247 F. Appx. 883, 885 (9th Cir. 2007) (holding that plaintiffs efforts to depose

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certain witnesses "did not constitute new evidence because the opportunity to depose the

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[witnesses] had long been present and [plaintiff] was given ample time to pursue the

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necessary discovery"). Instead of demonstrating reasonable diligence, the circumstances

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indicate knowing delay - the Conroys depositions, as well as those for Steven Green,

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M.D., Murray Zucker, M.D., Paul C. Murphy, M.D., and Moshe Lewis, M.D., were all

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taken over eight months after HCC Life filed its Motion for Summary Judgment (Doc.

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No. 30); over four months after the Conroy's filed their Response to the Motion for

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Summary Judgment (Doc. No. 45); and twelve days before the court denied the Motion

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for Summary Judgment. (Doc. No. 65.)

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Third, as discussed above, HCC Life's explanation for not supplementing its
response or requesting an extension to submit additional evidence was "summary

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does not excuse their obligation under Rule 56 to supplement the motion for summary

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continuance under Rule 56(d)).
Therefore, HCC Life has not demonstrated due diligence and their request for

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relief pursuant to Rule 60(b)(2) must be DENIED. Moreover, because HCC Life falls

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short of satisfying the first two prongs of the Rule 60(b)(2) analysis, it is unnecessary for

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the Court to address the third prong requiring a reexamination of the summary judgment

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motion with the aid of the belatedly offered evidence.

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CONCLUSION & ORDER

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Because HCC Life fails to meet the burden required under the first and second

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prongs of Rule 60(b )(2), the Court finds that HCC Life cannot satisfy the high hurdle

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necessary to warrant the extraordinary remedy of reconsideration. Accordingly, HCC

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Life's Application for Reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated:

January~' 2018

/lh'l1'.7"'1r T. Benitez
United States District Judge

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