Kristensen v. Credit Payment Services Inc.

Filing 420

ORDER Denying 410 Motion for District Judge to Reconsider Order. Signed by Judge Andrew P. Gordon on 1/25/16. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FLEMMING KRISTENSEN, individually and
on behalf of a class of similarly situated
individuals,

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Plaintiffs,

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v.

Case No. 2:12-cv-00528-APG-PAL
ORDER DENYING MOTION FOR
RECONSIDERATION
(Dkt. #410)

CREDIT PAYMENT SERVICES INC, et al.,

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Defendants.

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I previously granted summary judgment in favor of defendants Credit Payment Services

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Inc., Enova International, Inc., Leadpile LLC, and Pioneer Financial Services, Inc. (Dkt. #406.)

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Plaintiffs move for reconsideration on the issue of whether these defendants are vicariously liable

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for non-party AC Referral’s alleged violations of the Telephone Consumer Protection Act

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(“TCPA”) based on a ratification theory. The plaintiffs argue that I applied the wrong standard

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for determining ratification. They contend that I should have used the test from the Restatement

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(Third) of Agency, which makes a principal liable if the principal knew of facts that would lead a

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reasonable person to investigate further. According to the plaintiffs, once the proper standard is

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applied, genuine issues of fact remain regarding whether these defendants knew of facts that

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should have led them to investigate whether AC Referral violated the TCPA when generating

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leads.

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The defendants respond that I applied the test that the plaintiffs now request. They also

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argue that the plaintiffs’ arguments were either raised and rejected at summary judgment or could

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have been raised but were not. The defendants therefore contend reconsideration is not

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warranted.

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A district court “possesses the inherent procedural power to reconsider, rescind, or modify

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an interlocutory order for cause seen by it to be sufficient,” so long as it has jurisdiction. City of

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L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quotation and

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emphasis omitted); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,

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12 (1983) (citing Fed. R. Civ. P. 54(b)). “Reconsideration is appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J,

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Multnomah Cnty., OR v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A district court also

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may reconsider its decision if “other, highly unusual, circumstances” warrant it. Id. “A motion

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for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the

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court already has ruled.” In re AgriBioTech, Inc., 319 B.R. 207, 209 (D. Nev. 2004).

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Additionally, a motion for reconsideration may not be based on arguments or evidence that could

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have been raised previously. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th

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Cir. 2000).
I deny reconsideration. There is no newly discovered evidence or change in controlling

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law to support it. Additionally, my prior decision was not clearly erroneous or manifestly unjust.

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I applied the ratification theory that the plaintiffs now contend I did not apply. In my prior Order,

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I stated that, “to be liable under a ratification theory the principal must either (1) have actual

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knowledge of all material facts about the agent’s act or (2) should have known of the actual facts

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because a reasonable person under the circumstances would have ‘investigate[d] further.’” (Dkt.

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#406 at 6.) I then applied that standard and found no issues of fact. (Id. at 7-9.) The remainder of

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the plaintiffs’ motion for reconsideration is a rehashing of arguments and issues I previously

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considered and decided or could have been raised previously but were not.

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IT IS THEREFORE ORDERED that the plaintiffs’ motion for reconsideration (Dkt. #410)
is DENIED.
DATED this 25th day of January, 2016.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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