Quiroz v. Jeffrey A. Dickerson

Filing 84

ORDER DENYING 74 Motion for District Judge to Reconsider Order. Signed by Judge Larry R. Hicks on 9/27/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MANUEL QUIROZ, JR.,

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Plaintiff,

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v.

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JEFFREY A. DICKERSON.,

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Defendant.

3:10-cv-0657-LRH-RAM
ORDER

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Before the court is plaintiff Manuel Quiroz, Jr.’s (“Quiroz”) motion for reconsideration of

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the court’s denial of his motion for a writ of attachment (Doc. #731). Doc. #74.

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I.

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Facts and Background
This action arises out of defendant Jeffrey A. Dickerson’s (“Dickerson”) representation of

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Quiroz’s wife, Vivian Simon, and her relatives Donald and Ed Simon, in a separate action

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prosecuted in the District of Nevada (“the Simons action”).2 As part of the underlying litigation,

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Quiroz alleges that he advanced a large sum of money for litigation expenses which was supposed

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to be repaid from any settlement or damages award to the named plaintiffs. The Simons action

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Refers to the court’s docket number.

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See Simon v. United States Welding Co., 3:04-cv-0472-ECR.

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settled3 and Dickerson disbursed the settlement proceeds. However, Dickerson did not use any of

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the settlement proceeds to pay Quiroz.

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On June 1, 2010, Quiroz filed a complaint against Dickerson alleging three causes of action:

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(1) breach of contract; (2) breach of the covenant of good faith and fair dealing; and (3) breach of

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fiduciary duty. Doc. #1. On March 31, 2011, Quiroz filed a motion for issuance of a writ of

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attachment (Doc. #70) which the court denied for lack of sufficient evidence establishing that

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Quiroz was entitled to pre-judgment attachment (Doc. #73). Thereafter, Quiroz filed the present

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motion for reconsideration of the court’s denial order. Doc. #74.

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II.

Motion to Reconsider

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Quiroz brings his motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). A motion

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under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of finality and

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conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 887, 890 (9th

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Cir. 2000). Rule 59(e) provides that a district court may reconsider a prior order where the court is

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

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

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

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AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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In his motion, Quiroz contends that the court erred in failing to hold a hearing on his motion
for a writ of attachment pursuant to NRS 31.026. See Doc. #74.

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The court has reviewed the documents and pleadings on file in this matter and finds that

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reconsideration of the court’s prior order is without merit. In the court’s order denying Quiroz’s

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motion for a writ of attachment, the court found that Quiroz failed to demonstrate the “probable

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validity” of his underlying claims which is a statutory requirement prior to receiving a hearing. See

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A complete copy of the settlement agreement is attached as Exhibit 3 to Quiroz’s reply to his motion
for writ of attachment. See Doc. #72, Exhibit 3.

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NRS § 31.026. Because Quiroz failed to meet this preparatory requirement, no hearing was

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required under Nevada law and it was not error for the court to issue a written order. Accordingly,

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the court shall deny Quiroz’s motion for reconsideration.

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IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (Doc. #74) is
DENIED.

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IT IS SO ORDERED.

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DATED this 27th day of September, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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