Bettwieser v. Gans et al

Filing 34

ORDER RE: PLAINTIFFS MOTION TO RECONSIDER (Docket No. 28 ) - IT IS HEREBY ORDERED that Plaintiffs Motion to Reconsider (Docket No. 28 ) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

MARTIN BETTWIESER,

Case No.: 1:15-CV-00493-EJL-REB

Plaintiff,

ORDER RE: PLAINTIFF’S MOTION
TO RECONSIDER

vs.
(Docket No. 28)
BILLY GANS, aka WILLIAM GANS and BILLY
GANTZ, KELLY KALBFLEISCH, HERSCHEL
HOWARD, UNITED STATES POSTAL
SERVICE,
Defendants.

Now pending before the Court is Plaintiff’s Motion to Reconsider (Docket No. 28).
Having carefully considered the record and otherwise being fully advised, the undersigned enters
the following Order:
I. BACKGROUND
On May 2, 2016, the undersigned issued (1) a Report and Recommendation concerning
Defendant Herschel Howard’s Motion to Dismiss, and (2) a Memorandum Decision and Order
concerning Plaintiff’s Motion to Strike. See 5/2/16 Order & Rpt. and Recomm. (Docket Nos. 26
& 27). Relevant here, the undersigned recommended that Defendant Howard’s Motion to
Dismiss be granted because (1) Plaintiff has not sufficiently stated a claim pursuant to FRCP
12(b)(6), and (2) this Court does not have subject matter jurisdiction over Plaintiff’s claims
against Defendant Howard. See id. at pp. 5-8.

ORDER - 1

Plaintiff now moves to reconsider the undersigned’s above-referenced recommendations,
arguing in full:
COMES NOW the Plaintiff, Martin Bettwieser and moves for this court to reconsider
in Memorandum Decision of May 2, 2016 to not be final until after the response to
the Federal Defendant’s is presented too the this court so that review by the District
Court may not be necessary. Bettwieser basis this motion on the fact that only a
partial response was made to the facts that were available at that time of the
Defendant’s Howards Motion to Dismiss and that all the facts are now available for
a complete response to all the issues at hand.
Therefore Bettwieser requests for an order to withhold finality of its Memorandum
Decision and to reconsider that decision until after review of Plaintiff’s response and
that any review by the District Court be extended.
Mot. to Recon., p. 1 (Docket No. 28). It is assumed that Plaintiff is seeking reconsideration of
the undersigned’s Report and Recommendation concerning Defendant Howard’s Motion to
Dismiss; not the Memorandum Decision and Order concerning Plaintiff’s Motion to Strike.
II. DISCUSSION
FRCP 59 is not intended to provide litigants with a “second bite at the apple.” Weeks v.
Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). Motions to reconsider are requests for an
“extraordinary remedy, to be used sparingly in the interests of finality and conservation of
judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). The high bar that
movants must overcome to prevail on a motion for reconsideration reflects the courts “concerns
for preserving dwindling resources an promoting judicial efficiency.” Costello v. United States
Gov’t, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991).
Reconsideration of a court’s prior ruling is appropriate “if (1) the district court is
presented with newly discovered evidence, (2) the district court committed clear error or made
an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling

ORDER - 2

law.” S.E.C. v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (citation
omitted). If the motion to reconsider does not fall within one of these categories, it must be
denied.
Here, Plaintiff’s interest in adding argument to the record by way of his opposition to
another, currently-pending motion to dismiss, ignores the reality that subject-matter jurisdiction
does not exist as to Defendant Howard. That is to say, any “newly discovered evidence”
presented via Plaintiff’s opposition to a different motion does not change the fact that this Court
does not have subject-matter jurisdiction over Defendant Howard. See 5/2/16 Order & Rpt. and
Recomm., p. 6 (Docket Nos. 26 & 27) (“This is because individual union officials cannot be held
individually liable for breach of the duty of fair representation.”).1 Accordingly, the undersigned
with deny Plaintiff’s Motion to Reconsider, allowing U.S. District Judge Edward J. Lodge to
take up the Report and Recommendation in due course pursuant to Idaho Local Civil Rule
72.1(b)(2) and FRCP 72(b).2
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1

The undersigned stated as much already when considering Plaintiff’s partial response
to the at-issue motion to dismiss. See 5/2/16 Order & Rpt. and Recomm., p. 8, n.3 (Docket Nos.
26 & 27) (“Plaintiff has only submitted a ‘Partial Response to Motion Dismiss’ which discusses
the need to secure other defendants’ responses to the Complaint, but does not speak to Defendant
Howard’s jurisdictional arguments. That is, Plaintiff’s apparent issue with Defendant Howard
(assuming he even has one) is independent of the requisite need for subject matter jurisdiction
over Plaintiff’s claims against Defendant Howard to begin with.”) (internal citations omitted,
emphasis added).
2

The Court notes that Plaintiff has not formally lodged an objection to the Report and
Recommendation, but has filed a response to the currently-pending motion to dismiss.
ORDER - 3

III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion to
Reconsider (Docket No. 28) is DENIED.
DATED: August 25, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

ORDER - 4