Steelman Partners, LLP et al v. Sanum Investments Limited et al

Filing 38

ORDER Denying 34 Motion for Relief from the Court's Order Granting Defendants Motions To Dismiss. Signed by Judge Miranda M. Du on 5/1/2013. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

***

11

STEELMAN PARTNERS, LLP, et al.,

12

Plaintiffs,

13
14

v.
SANUM INVESTMENTS LIMITED, et al.,

15

Case No. 2:12-cv-00198-MMD-CWH
ORDER
(Plaintiffs’ Motion for Relief from the
Court’s Order Granting Defendants’
Motions to Dismiss – dkt. no. 34)

Defendants.

16
17

I.

SUMMARY

18

Before the Court is Plaintiffs’ Motion for Relief from the Court’s Order Granting

19

Defendants’ Motions to Dismiss. (Dkt. no. 34). For the reasons described below, the

20

Motion is denied.

21

II.

BACKGROUND

22

The relevant facts are set forth in the Court’s previous Order upon which

23

Plaintiffs now seek relief. (See dkt. no. 33.) In that Order, the Court granted Defendants’

24

Motions to Dismiss, determining that Nevada does not have personal jurisdiction over

25

Defendants Jade or Sanum in this action. Plaintiffs now argue that the Court erred by

26

(1) not considering the forum-selection clause contained in the proposed agreement;

27

and (2) determining that the only in-person meeting between the parties occurred in

28

Macau.

1

III.

LEGAL STANDARD1

2

Although not mentioned in the Federal Rules of Civil Procedure, motions for

3

reconsideration may be brought under Rules 59(e) and 60(b). Rule 59(e) provides that

4

any motion to alter or amend a judgment shall be filed no later than 28 days after entry

5

of the judgment. The Ninth Circuit has held that a Rule 59(e) motion for reconsideration

6

should not be granted “absent highly unusual circumstances, unless the district court is

7

presented with newly discovered evidence, committed clear error, or if there is an

8

intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

9

GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange Street Partners v.

10

Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

11

Under Rule 60(b), a court may relieve a party from a final judgment, order or

12

proceeding only in the following circumstances: (1) mistake, inadvertence, surprise, or

13

excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void;

14

(5) the judgment has been satisfied; or (6) any other reason justifying relief from the

15

judgment. Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000); see also De Saracho

16

v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000) (noting that the district

17

court’s denial of a Rule 60(b) motion is reviewed for an abuse of discretion).

18

A motion for reconsideration must set forth the following: (1) some valid reason

19

why the court should revisit its prior order; and (2) facts or law of a “strongly convincing

20

nature” in support of reversing the prior decision. Frasure v. United States, 256

21

F.Supp.2d 1180, 1183 (D. Nev. 2003). On the other hand, a motion for reconsideration

22

is properly denied when the movant fails to establish any reason justifying relief.

23

Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (holding that a district court

24

properly denied a motion for reconsideration in which the plaintiff presented no

25

arguments that were not already raised in his original motion)). Motions for

26
27
28

1

Plaintiffs bring their Motion under Fed. Rs. Civ. Proc. 54(b) or 60(b). Because
the Order was a final order dismissing Jade and Sanum from the case, the Court
analyzes the Motion under Rule 60(b).
2

1

reconsideration are not “the proper vehicles for rehashing old arguments,” Resolution

2

Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994) (footnotes omitted),

3

and are not “intended to give an unhappy litigant one additional chance to sway the

4

judge.” Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977).

5

IV.

DISCUSSION

6

A.

7

Plaintiffs argue that the Court erred in neglecting to address the forum-selection

8

clause contained in the Proposed Agreement, which ostensibly demonstrates that Jade

9

and Sanum consented to litigating any conflict regarding the Agreement in Nevada.

10

Forum Selection Clause

(See dkt. no. 34 at 3.)

11

While the Proposed Agreement between SAA and Jade contained a forum-

12

selection clause (see dkt. no. 19 at 39), the agreement was never signed (see id. at 41).

13

Plaintiffs admit this, but argue that “the parties at the very least had an oral agreement

14

in place when Plaintiff began to perform work.” (Dkt. no. 37 at 3.)

15

In their Response Brief, Plaintiffs argued that Nevada has jurisdiction over

16

Defendants because Steelman is a Nevada entity; Paul Steelman is a Nevada architect;

17

Defendants negotiated with Plaintiffs’ Nevada employees; Defendants corresponded

18

with Plaintiffs’ Nevada employees; and Defendants sent payment to Nevada. The Court

19

addressed each of these arguments. It did not address the argument that the parties

20

had reached an oral agreement regarding forum selection, because this argument was

21

not raised in the briefs. Reconsideration is not a mechanism for parties to make new

22

arguments that could reasonably have been raised in their original briefs. See Kona

23

Enters. v. Estate of Bishop, 229 F.3d 887, 890 (9th Cir. 2000).

24

Moreover, the mere assertion that an oral agreement existed, without evidence to

25

support this assertion, is insufficient here, where Defendants present affirmative

26

evidence that such agreement did not exist. “When a defendant moves to dismiss for

27

lack of personal jurisdiction [under Federal Rule of Civil Procedure 12(b)(2)], the plaintiff

28

bears the burden of demonstrating that the court has jurisdiction over the defendant.”
3

1

Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Where the issue is

2

before the court on a motion to dismiss based on affidavits and discovery materials

3

without an evidentiary hearing, the plaintiff must make “a prima facie showing of facts

4

supporting jurisdiction through its pleadings and affidavits to avoid dismissal.” Glencore

5

Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1119 (9th Cir.

6

2002). The court accepts as true any uncontroverted allegations in the complaint and

7

resolves any conflicts between the facts contained in the parties’ evidence in the

8

plaintiff’s favor. Id. However, for personal jurisdiction purposes, a court “may not

9

assume the truth of allegations in a pleading which are contradicted by affidavit.”

10

Alexander v. Circus Circus Enters., Inc., 972 F.2d 261, 262 (9th Cir. 1992) (quotation

11

omitted). Here, Sanum and Jade both presented affidavit testimony stating that they did

12

not assent to any contractual terms presented by Steelman. (Dkt. no. 19 at 26, ¶ 20;

13

dkt. no. 20 at 25, ¶¶ 20-21.)

14

B.

Evidence of In-Person Meetings in Nevada

15

In their Motion for Reconsideration, Plaintiffs attach three exhibits ostensibly

16

demonstrating that the parties had in-person meetings in Nevada. Plaintiffs argue that

17

this evidence contradicts the Court’s determination that the only in-person meeting

18

between the parties took place in Macau. (Dkt. no. 34 at 4.) These exhibits were not

19

previously produced by Plaintiffs in their Response Brief.2 As stated, reconsideration is

20

not a mechanism for parties to make new arguments that could reasonably have been

21

raised in their original briefs. See Kona Enters. v. Estate of Bishop, 229 F.3d 887, 890

22

(9th Cir. 2000). Plaintiffs do not explain why these exhibits could not have been

23

attached to their Response to the Motions to Dismiss. Therefore, it was not clear error

24
25
26
27
28

2

Plaintiffs acknowledge this omission in their Reply Brief, but argue that “Plaintiff
is attempting to provide the Court with the truth so that this matter may [be] [sic] decided
on its merits and not a technicality.” (Dkt. no. 37 at 3.) Assuming arguendo that the
agreements establish purposeful availment, Plaintiffs would have been wise to provide
the Court with “the truth” in their Response to the Motions to Dismiss, rather than
impermissibly raising the argument on a Motion for Reconsideration.
4

1

for the Court to determine that the only in-person meeting between the parties occurred

2

in Macau.

3

V.

4
5
6
7

CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Relief from the Court’s Order

Granting Defendants’ Motions to Dismiss (dkt. no. 34) is DENIED.
DATED THIS 1st day of May 2013.

8
9

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5