Bonavito v. Nevada Property 1 LLC

Filing 39

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 PETER BONAVITO, ) ) Plaintiff, ) ) vs. ) ) NEVADA PROPERTY 1, LLC, ) ) Defendant. ) __________________________________________) Case No. 2:13-cv-00417-JAD-CWH ORDER 12 This matter is before the Court on Plaintiff’s Motion for Reconsideration (#38), filed on 13 December 10, 2013. Plaintiff requests that the Court reconsider its Order #37, which denied 14 without prejudice the parties stipulation on a claw-back procedure. 15 The Court will deny Plaintiff’s Motion for Reconsideration of Order #37 (#38). While the 16 Federal Rules of Civil Procedure do not explicitly recognize a petition for rehearing or motion to 17 reconsider, the court has the inherent power to revise, correct, and alter interlocutory orders at any 18 time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren, 259 F.2d 101, 105 (9th 19 Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006). This 20 authority is governed by the doctrine that a court will generally not reexamine an issue previously 21 decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc. v. Bridgestone/ 22 Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d 1111, 1114 23 (9th Cir. 1998). However, a court has discretion to depart from the prior order when (1) the first 24 decision was clearly erroneous, (2) there has been an intervening change of law, (3) the evidence on 25 remand is substantially different, (4) other changed circumstances exist, or (5) a manifest injustice 26 would otherwise result. Cuddy, 147 F.3d at 1114. 27 On the other hand, a motion for reconsideration is properly denied when the movant fails to 28 establish any reason justifying relief. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). 1 A motion for reconsideration should not merely present arguments previously raised; that is, a 2 motion for reconsideration is not a vehicle permitting the unsuccessful party to reiterate arguments 3 previously presented. See Merozoite v. Thorp, 52 F.3d 252, 255 (9th Cir.1995); Khan v. Fasano, 4 194 F.Supp.2d 1134, 1136 (S.D. Cal. 2001) (“A party cannot have relief under this rule merely 5 because he or she is unhappy with the judgment.”). 6 Here, the Court finds that Plaintiff has failed to demonstrate that reconsideration is proper. 7 Plaintiff fails to cite the standard for reconsideration or any points and authority in support of 8 reconsideration as required by Local Rule 7-2. Additionally, the Court finds that the rationale for 9 denying without prejudice the proposed claw-back procedure is supported by good cause. First, the 10 parties stipulation proposed an expedited court briefing schedule in the event of a privilege 11 challenge. This is inconsistent with Local Rule 7-2, which sets out the standard briefing schedule. 12 Additionally, the Court has discretion to set the briefing schedule. If the parties found that an 13 expedited schedule is necessary, then they could follow Local Rule 7-5 to request that the motion 14 be heard on an emergency basis. Second, the parties stipulation is ambiguous as to whether it is 15 adopting Federal Rule of Civil Procedure 502(d) or 502(a)-(b). As the Court stated in Order #37, 16 the stipulation appears to be inconsistent in that it indicates that inadvertent disclosure shall never 17 operate as a waiver of privilege and only the privilege may be challenged in Court. This would be 18 an agreement by the parties under Rule 502(d) that would supplant the procedure in 502(b). If the 19 parties agree that inadvertent disclosure is never a waiver of privilege and only the privilege issue is 20 challengeable in court, then they would be deviating from Rule 502(a)-(b). Accordingly, the parties 21 should submit stipulation with the proposal that they would like to follow and specify which parts 22 of the Federal Rules of Civil Procedure they are adopting. 23 Based on the foregoing and good cause appearing therefore, 24 IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration (#38) is denied. 25 DATED this 11th day of December, 2013. 26 27 ______________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 28 2

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