Kenneweg et al v. Quality Loan Service Corporation et al

Filing 32

ORDER DENYING P's # 25 Motion for reconsideration. Signed by Judge Larry R. Hicks on 5/6/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JASON KENNEWEG and GRISELDA
GARIBAY,

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Plaintiffs,
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v.
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INDYMAC BANK, FSB; et al.,
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Defendants.
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3:10-cv-0475-LRH-RAM
ORDER

Before the court is plaintiffs Jason Kenneweg and Griselda Garibay’s (collectively

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“plaintiffs”) motion for reconsideration of the court’s January 4, 2011 order of dismissal

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(Doc. #241). Doc. #25.

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I.

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Facts and Procedural History
In November, 2006, plaintiffs purchased real property through a mortgage note and deed of

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trust originated by defendant Indymac Bank, F.S.B. (“Indymac”). Eventually, plaintiffs defaulted on

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the mortgage note and defendants initiated non-judicial foreclosure proceedings.

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Subsequently, plaintiffs filed a complaint in state court against defendants alleging eleven

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causes of action: (1) injunctive relief; (2) declaratory relief; (3) debt collection violations;

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(4) Nevada Unfair and Deceptive Trade Practices Act, NRS 598.0923; (5) Nevada Unfair Lending

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Refers to the court’s docket entry number.

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Practices Act, NRS 598D.100; (6) breach of good faith and fair dealing; (7) NRS 107.080; (8) quiet

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title; (9) fraud through omission; (10) fraud in the inducement; and (11) unjust enrichment.

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Doc. #1, Exhibit 2.

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In response, defendants filed a motion for summary judgment (Doc. #7) and a motion to

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dismiss (Doc. #15) which were granted by the court (Doc. #24). Thereafter, plaintiffs filed the

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present motion for reconsideration of the court’s order of dismissal. Doc. #25.

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II.

Motion for Reconsideration (Doc. #25)

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Plaintiffs bring their motion for reconsideration pursuant to Fed. R. Civ. P. 59(e).

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Rule 59(e) provides that a district court may reconsider a prior order where the court is presented

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with newly discovered evidence, an intervening change of controlling law, manifest injustice, or

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where the prior order was clearly erroneous. FED . R. CIV . P. 59(e); see also United States v. Cuddy,

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147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993).

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Here, plaintiffs argue that the court misapplied the legal standard concerning their claims

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and therefore the court’s order of dismissal was clearly erroneous. See Doc. #21. However, the

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court finds that the plaintiffs have failed to meet their burden for reconsideration under Rule 59.

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They have not identified any intervening change of controlling law, any misapplication of

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precedent, or any other legal error underlying the court’s order. Further, they have not identified

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any newly discovered evidence or relevant facts suggesting manifest injustice. Rather, plaintiffs

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provide the court with the same arguments and legal authority, including two unpublished non-

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precedential state district court decisions, contained in their opposition to the motion for summary

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judgment and motion to dismiss. “Reconsideration is not an avenue to re-litigate the same issues

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and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378

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F.Supp.2d 1280, 1288 (D. Nev. 2005) Accordingly, the court shall deny plaintiffs’ motion.

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IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (Doc. #25) is
DENIED.

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IT IS SO ORDERED.

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DATED this 6th day of May, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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