Cummings v. Stewart Title Guaranty Company et al

Filing 78

MEMORANDUM DECISION AND ORDER - Plaintiffs Motion for Reconsideration (Dkt. 71 ) is DENIED. Plaintiffs Motions for Extension of Time (Dkt. 70 , 77 ) are GRANTED. Plaintiff shall file his response to Defendants motion for summary judgment on or before September 8, 2020. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
STEVEN B. CUMMINGS, a married
individual residing in Idaho,

Case No. 4:15-cv-00599-BLW
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
STEWART TITLE GUARANTY
COMPANY, a Texas Corporation;
JOHN DOES 1-10,
Defendants.

INTRODUCTION
Before the Court is pro se Plaintiff ,Steven Cummings’ Motion for
Reconsideration (Dkt. 71)1 of this Court’s order (Dkt. 67) denying his motion for
leave to amend his complaint. Also, before the Court are Cummings’ motions for
extension of time to respond to Defendant’s motion for summary judgment. Dkt.
70, 77. The Court has carefully reviewed the record in this case. The motions are

1

The Court received a “corrected memorandum” in support of Cummings’ motion on
July 9, 2020. Dkt. 75. Defendants did not have an opportunity to respond to this memorandum.
The Court has reviewed it and finds that it does not change the analysis.

MEMORANDUM DECISION AND ORDER - 1

fully briefed and ripe for decision. For the reasons that follow the Court will deny
the motion for reconsideration and grant the motions for an extension of time to
respond.
BACKGROUND
The factual and procedural background of this case are set out in the Court’s
order denying Cumming’s motion to amend his complaint. Dkt. 67. The scheduling
order in this case set the deadline for joinder of parties and amendment of
pleadings for January 20, 2017. Dkt. 13. On March 17, 2017 notice was filed that
Cummings and his wife had filed for bankruptcy. Dkt. 31. This case was stayed
pending the bankruptcy proceeding. Dkt. 32. On December 19, 2019 the
bankruptcy stay was lifted. Dkt. 46. On February 7, 2020, Cummings filed a
motion to amend the complaint. Dkt. 53. On May 13, 2020, the Court denied
Cummings’ motion to amend his complaint, finding Cummings had failed to show
good cause for waiting to file until after the dispositive motion deadline, that the
delay would prejudice Defendant, and amendment would be futile. Dkt. 67.
Cummings now asks the Court to reconsider its order. Dkt. 71.
LEGAL STANDARD
Cummings brings his motion for reconsideration under Federal Rule of Civil
Procedure 59(e). Rule 59 applies only to judgments and does not apply to

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interlocutory orders. Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 466 (9th Cir.
1989) (“[T] the word ‘judgment’ encompasses final judgments and appealable
interlocutory orders.”).
Courts have inherent power to modify their interlocutory orders before
entering a final judgment. Marconi Wireless Telegraph Co. v. United States, 320
U.S. 1, 47–48 (1943). In addition, the Federal Rules of Civil Procedure explicitly
grant courts the authority to modify their interlocutory orders. Fed. R. Civ. P.
54(b), 60(b). The Court, therefore, construes Cummings’ Motion as one brought
pursuant to Rule 54(b), which can be revised at any time under the Court's inherent
authority. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d
882, 885 (9th Cir. 2001) (“As long as a district court has jurisdiction over the case,
then it possesses the inherent procedural power to reconsider, rescind, or modify an
interlocutory order for cause seen by it to be sufficient.”)
A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) error must be corrected; and (2) judicial efficiency
demands forward progress. The former principle has led courts to hold that a denial
of a motion to dismiss or for summary judgment may be reconsidered at any time
before final judgment. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80
(9th Cir. 1979). While even an interlocutory decision becomes the “law of the

MEMORANDUM DECISION AND ORDER - 3

case,” it is not necessarily carved in stone. Justice Oliver Wendell Holmes
concluded that the “law of the case” doctrine “merely expresses the practice of
courts generally to refuse to reopen what has been decided, not a limit to their
power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912). “The only sensible
thing for a trial court to do is to set itself right as soon as possible when convinced
that the law of the case is erroneous. There is no need to await reversal.” In re
Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D. Cal. 1981)
(Schwartzer, J.).
The need to be right, however, must co-exist with the need for forward
progress. A court’s opinions “are not intended as mere first drafts, subject to
revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v.
Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).
While courts have the inherent authority to review interlocutory orders at
any time prior to entry of final judgment, to determine the merits of a request to
reconsider an interlocutory order, both this Court and district courts throughout the
Ninth Circuit are frequently guided by substantially the same standards as those

MEMORANDUM DECISION AND ORDER - 4

used to reconsider final orders pursuant to Rule 59(e).2 See, Dickinson Frozen
Foods, Inc. v. FPS Food Process Sols. Corp., 2020 WL 2841517, at *10 (D. Idaho
June 1, 2020). Under Rule 59 reconsideration may be warranted: (1) because of
newly discovered evidence; (2) because the Court committed clear error or the
order was manifestly unjust; or (3) due to an intervening change in the law. Sch.
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993).
Regardless of the standard or rule under which they are brought, “motions
for reconsideration are generally disfavored, and may not be used to present new
arguments or evidence that could have been raised earlier.” America Rivers v.
NOAA Fisheries, 2006 WL 1983178, at *2 (D. Or. 2006) (citing Fuller v. M.G.
Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)).
ANALYSIS
Cummings argues that reconsideration is warranted on the basis of new
evidence, the need to correct clear error, and to prevent further manifest injustice.
Dkt. 71 at 1.

2

Rule 60(b) provides grounds for relief from a judgment or order which courts also use
in deciding a motion for reconsideration. Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc.,
5 F.3d 1255, 1263 (9th Cir. 1993) The grounds in Rule 60(b) mostly track Rule 59(e) with a few
specific additions, which are not applicable here.

MEMORANDUM DECISION AND ORDER - 5

Cummings argues that the court misconstrued the facts leading to his state
case. The general background was taken from Cummings v. Stephens, 157 Idaho
348, 351 (2014) and ultimately had no bearing on the Court’s decision to deny
Cumming’s motion to amend his complaint. While Cummings may not like the
state courts’ decisions regarding his previously litigated claims, he cannot relitigate
them here. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.
2005). There was no clear error in the Court’s denial of Cummings motion to
amend on this basis.
Cummings argues that defense counsel interfered in his bankruptcy
proceedings, that Defendant received notice of the bankruptcy in January 2017 and
that Cummings reserved the right to amend his litigation plan. Dkt. 71-1 at 5-8.
These arguments are presumably made to demonstrate good cause for Cummings
failure to file his motion to amend prior to the deadline set in the case management
order. The case management order governed the proceedings in this case and
Cummings could not unilaterally choose a different date. Cummings did not file a
motion or request an extension of time to file an amended complaint before the
deadline passed. Cummings suggests that Defendant’s receipt of notice of the
bankruptcy in January 2017 should have paused all litigation. However, this Court
did not receive notice of Cummings’ bankruptcy until March 2017, well after the

MEMORANDUM DECISION AND ORDER - 6

deadline for amendment of pleadings had passed. Cummings raised these
arguments in his motion to amend, and the Court considered them. They are not
newly discovered evidence nor do they demonstrate the Court clearly erred in
denying his motion.
Cummings argues that there is newly discovered evidence contained in an
expert report filed as an exhibit to his motion for reconsideration. Dkt. 71-1 at 20.
The expert report is not dated and was not properly authenticated. Despite this the
Court has reviewed the expert report. Much of this evidence relates to the disputed
land transaction that was litigated in the state courts. Further, Cummings attached a
similar expert report to his proposed amended complaint. Finally, this evidence
relates to the description of the property and the date of the transfer, which
Cummings argues occurred in 2016 instead of 2014. The expert report also
references several amended orders for sale based on, what the expert believes, is
the forged legal description. However, this was the same legal description
addressed in the prior court proceedings. Cummings has not shown why this
evidence was unavailable prior to filing his motion to amend the complaint.
Further, it does not change the Court’s analysis.
Cummings spends a significant portion of his motion arguing that he has
been diligent, and that good cause exists to allow him to amend the complaint. But

MEMORANDUM DECISION AND ORDER - 7

he cannot rehash this argument on a motion for reconsideration. Further,
Cummings does not address the Court’s findings that allowing him to amend the
complaint would prejudice Defendant or that many of the claims would be futile.
Dkt. 67 at 6-7. Accordingly, the Court will deny his motion for reconsideration.
Cummings also seeks an extension of time to file a response to Defendant’s
motion for summary judgment. Dkt. 70, 77. Defendant opposes an extension. Dkt.
73. Cummings states that that he is undergoing medical procedures related to a
terminal illness and the COVID-19 pandemic has restricted his ability to research
the law surrounding Defendant’s motion. Dkt. 70-2. In his subsequent motion,
Cummings states that he is in the hospital and has had to undergo numerous
surgical procedures. Dkt. 77. Cummings seeks at least a 90 day extension.
Defendant’s motion for summary judgment was filed on May 20, 2020.
Under Local Civil Rule 7.1(c) a responding party has 21 days to file their response,
which would have made Cummings response due on June 10, 2020. Cummings
filed his first motion to extend was received by the Court on June 18, 2020. Due to
the severity of Cummings current medical condition and hospitalization the Court
will grant Cummings an extension of time to file his response to Defendant’s
motion. Cummings shall file his response on or before September 8, 2020, which is
90 days after the original response deadline.

MEMORANDUM DECISION AND ORDER - 8

ORDER
IT IS ORDERED that:
1.

Plaintiff’s Motion for Reconsideration (Dkt. 71) is DENIED.

2.

Plaintiff’s Motions for Extension of Time (Dkt. 70, 77) are

GRANTED. Plaintiff shall file his response to Defendant’s motion for summary
judgment on or before September 8, 2020.
DATED: August 3, 2020
_________________________
B. Lynn Winmill
U.S. District Court Judge

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