Bonavito v. Nevada Property 1 LLC
Filing
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ORDER Denying 38 Plaintiff's Motion for Magistrate Judge to Reconsider Order. Signed by Magistrate Judge Carl W. Hoffman on 12/11/2013. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PETER BONAVITO,
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Plaintiff,
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vs.
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NEVADA PROPERTY 1, LLC,
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Defendant.
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__________________________________________)
Case No. 2:13-cv-00417-JAD-CWH
ORDER
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This matter is before the Court on Plaintiff’s Motion for Reconsideration (#38), filed on
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December 10, 2013. Plaintiff requests that the Court reconsider its Order #37, which denied
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without prejudice the parties stipulation on a claw-back procedure.
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The Court will deny Plaintiff’s Motion for Reconsideration of Order #37 (#38). While the
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Federal Rules of Civil Procedure do not explicitly recognize a petition for rehearing or motion to
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reconsider, the court has the inherent power to revise, correct, and alter interlocutory orders at any
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time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren, 259 F.2d 101, 105 (9th
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Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006). This
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authority is governed by the doctrine that a court will generally not reexamine an issue previously
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decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc. v. Bridgestone/
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Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d 1111, 1114
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(9th Cir. 1998). However, a court has discretion to depart from the prior order when (1) the first
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decision was clearly erroneous, (2) there has been an intervening change of law, (3) the evidence on
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remand is substantially different, (4) other changed circumstances exist, or (5) a manifest injustice
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would otherwise result. Cuddy, 147 F.3d at 1114.
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On the other hand, a motion for reconsideration is properly denied when the movant fails to
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establish any reason justifying relief. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985).
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A motion for reconsideration should not merely present arguments previously raised; that is, a
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motion for reconsideration is not a vehicle permitting the unsuccessful party to reiterate arguments
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previously presented. See Merozoite v. Thorp, 52 F.3d 252, 255 (9th Cir.1995); Khan v. Fasano,
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194 F.Supp.2d 1134, 1136 (S.D. Cal. 2001) (“A party cannot have relief under this rule merely
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because he or she is unhappy with the judgment.”).
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Here, the Court finds that Plaintiff has failed to demonstrate that reconsideration is proper.
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Plaintiff fails to cite the standard for reconsideration or any points and authority in support of
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reconsideration as required by Local Rule 7-2. Additionally, the Court finds that the rationale for
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denying without prejudice the proposed claw-back procedure is supported by good cause. First, the
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parties stipulation proposed an expedited court briefing schedule in the event of a privilege
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challenge. This is inconsistent with Local Rule 7-2, which sets out the standard briefing schedule.
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Additionally, the Court has discretion to set the briefing schedule. If the parties found that an
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expedited schedule is necessary, then they could follow Local Rule 7-5 to request that the motion
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be heard on an emergency basis. Second, the parties stipulation is ambiguous as to whether it is
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adopting Federal Rule of Civil Procedure 502(d) or 502(a)-(b). As the Court stated in Order #37,
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the stipulation appears to be inconsistent in that it indicates that inadvertent disclosure shall never
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operate as a waiver of privilege and only the privilege may be challenged in Court. This would be
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an agreement by the parties under Rule 502(d) that would supplant the procedure in 502(b). If the
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parties agree that inadvertent disclosure is never a waiver of privilege and only the privilege issue is
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challengeable in court, then they would be deviating from Rule 502(a)-(b). Accordingly, the parties
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should submit stipulation with the proposal that they would like to follow and specify which parts
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of the Federal Rules of Civil Procedure they are adopting.
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Based on the foregoing and good cause appearing therefore,
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IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration (#38) is denied.
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DATED this 11th day of December, 2013.
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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge
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