Kristensen v. Credit Payment Services Inc.

Filing 376

ORDER Denying 366 Motion for Partial Reconsideration. Signed by Magistrate Judge Peggy A. Leen on 3/16/2015. (Copies have been distributed pursuant to the NEF - DC)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

FLEMMING KRISTENSEN,

8
9
10

Case No. 2:12-cv-00528-APG-PAL
Plaintiff,

ORDER

v.
(Mtn to Reconsider – Dkt. #366)
CREDIT PAYMENT SERVICES INC., et al.,
Defendants.

11
12

This matter is before the court on Defendant Credit Payment Services, Inc.’s, (“CPS”)

13

Motion for Partial Reconsideration of Order Denying its Motion to File Amended Answer to

14

Plaintiff’s First Amended Class Action Complaint (Dkt. #366) filed March 10, 2015. The

15

Motion was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and

16

1-9. The court has considered the Motion and the Declaration of Peter M. Colosi (Dkt. #367)

17

filed in support. As the moving party has not cited or argued the applicable standard for motions

18

for reconsideration, and this case has been characterized by time consuming and expensive

19

motion practice, the court will decide the matter without waiting for a response.

20

On February 24, 2015, the court entered an Order (Dkt. #358) denying CPS’ Motion for

21

Leave to File an Amended Answer (Dkt. #192). The court found CPS had not shown good cause

22

as required by Rule 16 of the Federal Rules of Civil Procedure to justify modifying the court’s

23

Scheduling Order (Dkt. #93), and it had not shown excusable neglect for the delay in filing the

24

Motion months after the deadline for amending pleadings had expired as required by LR 26-4.

25

CPS requests the court reconsider its prior Order and allow CPS to add two additional

26

affirmative defenses.

27

CPS asserts good cause exists to allow an amended answer because it retained new

28

counsel who began working on this case November 15, 2013, and from that point, it “quickly
1

1

engaged in meaningful discovery.” Motion at 4:13-14. Additionally CPS asserts that Plaintiff

2

will not be prejudiced by the amended answer because Plaintiff was aware of the two additional

3

defenses it seeks to add and had ample time to conduct discovery on those issues.

4

Rule 59 of the Federal Rules of Civil Procedure permits a court to reconsider and amend

5

a previous order. See Fed. R. Civ. P. 59(e). However, reconsideration is “an extraordinary

6

remedy, to be used sparingly and in the interest of finality and conservation of judicial

7

resources.” Kona Enters., Inc., v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal

8

citation omitted). A motion for reconsideration “should not be granted, absent highly unusual

9

circumstances,” unless: (a) the movant presents the court newly discovered evidence; (b) the

10

court committed clear error, or the initial decision was manifestly unjust; or (c) there is an

11

intervening change in controlling law. Id. (citing 389 Orange Street Partners v. Arnold, 179

12

F.3d 656, 665 (9th Cir. 1999)); see also Nunes v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir .2004)

13

(quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). A motion for

14

reconsideration “may not be used to raise arguments or present evidence for the first time when

15

they could reasonably have been raised earlier.” Kona Enters., 229 F.3d at 890 (emphasis in

16

original).

17

CPS’ Motion to Reconsider does not cite, let alone attempt to comply with, the applicable

18

standard. The Motion to Amend was denied because CPS failed to meet its burden. The Motion

19

to Reconsider is an improper attempt to take a “second bite at the apple” and makes arguments

20

CPS should have raised in the first instance.1 Id.; see also Carroll v. Nakatani, 342 F.3d 934,

21

945 (9th Cir. 2003). Substitution of new counsel is not grounds to grant a motion which could

22

have and should have been filed within the deadlines established by the court’s scheduling order.
Accordingly,

23
24
25
26
27
28

///

1

Even if CPS were permitted a second bite at the apple, its request would still be denied.
Although CPS acknowledges it should have also shown excusable neglect as required by LR 264, the Motion to Reconsider, like the Motion to Amend, does not explain how its failure to file
the Motion to Amend until five months after the deadline to amend pleadings expired was the
result of excusable neglect.
2

1
2
3

IT IS ORDERED that CPS’s Motion for Partial Reconsideration (Dkt. #366) is
DENIED.
Dated this 16th day of March, 2015.

4
5
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3