Friends of Moon Creek v. Diamond Lake Improvement Association Inc et al

Filing 202

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION - denying 173 Motion for Reconsideration Signed by Senior Judge Justin L. Quackenbush. (VR, Courtroom Deputy)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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FRIENDS OF MOON CREEK, an
unincorporated association, Cheryl
and Robert Balentine, George A. and
Jane Doe Tyler; Douglas M. and Jane
Doe Anderson; Tom and Michele Bowyer
Joe F. and Jane Doe Struther; Mark and
Jane Doe Moeser; Gaylan and Jane Doe
Warren, and Michael and Jane Doe
Jeffrey,

)
) No. CV-13-0396-JLQ
)
) ORDER DENYING PLAINTIFFS’
) MOTION FOR RECONSIDERATION
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Plaintiffs,
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vs.
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DIAMOND LAKE IMPROVEMENT,
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ASSOCIATION, INC., PHIL ANDERSON, )
Director Department of Fish & Wildlife,
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SHARON SORBY, Coordinator Pend
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Oreille County Noxious Weed Control
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Board,
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Defendants/Cross-/Counter-Claimants. )

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BEFORE THE COURT is Plaintiffs’ Motion for Reconsideration Under Rule

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59(e). (ECF No. 173). Defendant Anderson, of the Department of Fish & Wildlife, and

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Defendant Diamond Lake Improvement Association (“DLIA”) have both filed a response

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to the Motion. Oral argument was not requested, and the Motion was submitted for

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decision without oral argument.

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I. Procedural History and Background

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This action was commenced on November 21, 2013. The procedural history has

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been set forth at length in prior filings and will not be repeated here. The court has set

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forth the general factual background in prior Orders. (See for example ECF No. 71, 80,

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133, & 139). In regard to the instant Motion, on February 5, 2015, the court entered its

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ORDER - 1

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Order denying the cross-Motions for Summary Judgment filed by Plaintiffs and by

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Defendant Anderson.

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Reconsideration seeking reconsideration pursuant to Fed.R.Civ.P. 59(e), or alternatively

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a determination of material facts not in dispute under Fed.R.Civ.P. 56(g). Plaintiffs

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contend that the court found genuine issues of material fact on questions that are not

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genuinely disputed. Plaintiffs ask that if the court does not reconsider and grant summary

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judgment that the court make findings that certain facts are not disputed. Defendant

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Anderson states the Motion should be denied “because the facts set forth by Plaintiffs are

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either in dispute, not material because the time to challenge the legality of the process has

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passed, or are mischaracterizations of the evidence.” (ECF No. 174, p. 2). Defendant

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DLIA’s response is much more expansive and claims the court cannot reconsider the

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prior ruling because it lacks jurisdiction, Plaintiffs’ lack standing, and as a matter of law

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DLIA did not act under color of law. (ECF No. 191).

On February 18, 2015, Plaintiffs filed the Motion for

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II. Discussion

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A. Rule 59(e)

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Fed.R.Civ.P. 59(e) provides that a “motion to alter or amend a judgment must be

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filed no later than 28 days after the entry of the judgment.” The court has not entered

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judgment, as the Motions for Summary Judgment were denied. The court’s Order (ECF

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No. 172) denying the Motions for Summary Judgment is not a Rule 54 “Judgment,” and

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as stated in Rule 54(b), “any order or other decision, however designated, that adjudicates

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fewer than all the claims or the rights and liabilities of fewer than all the parties does not

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end the action as to any of the claims or parties and may be revised at any time before the

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entry of judgment.” The court does have authority to revise its prior Order.

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Reconsideration of a previous order is an extraordinary remedy, to be used

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sparingly in the interests of finality and conservation of judicial resources. Kodimer v.

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County of San Diego, 2010 WL 2926493 (S.D. Cal. 2010) citing Carroll v. Nakatani, 342

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F.3d 934, 945 (9th Cir. 2003). As Plaintiffs rely on Rule 59(e), the primary grounds for

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ORDER - 2

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reconsideration under that Rule are: 1) an intervening change in controlling law; 2) the

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presentation of newly discovered evidence; and 3) the need to correct clear error or

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prevent manifest injustice. Thomas v. United States, 1997 WL 881213 (D.Or. 1997)

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citing School Dist. No. 1J v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Reargument of the previously determined motion is not grounds for granting a motion for

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reconsideration. Kodimer, at *1 citing American Ironworks v. North American Const.

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Corp., 248 F.3d 892, 899 (9th Cir. 2001). A district court may decline to consider an

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issue raised for the first time in motion for reconsideration. Id. at *1.

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Plaintiffs do not argue an intervening change in controlling law, or present newly

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discovered evidence. Rather it appears Plaintiffs argue that the court erred in its

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conclusion that there were questions of fact which precluded summary judgment. The

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request for reconsideration is DENIED.

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B. Rule 56(g)

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Fed.R.Civ.P. 56(g) provides: “If the court does not grant all the relief requested by

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the motion, it may enter an order stating any material fact–including an item of damages

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or other relief–that is not genuinely in dispute and treating the fact as established in the

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case.” This Rule uses the term “may” and is discretionary. See U.S. Bank v. Verizon, 761

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F.3d 409, 428 n.15 (5th Cir. 2014)(“The Rule’s use of the word “may”, as opposed to

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“shall”, indicates that district court’s are not required to enter a separate order under Rule

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56(g)”). At the time the prior cross-Motions for Summary Judgment (ECF No. 140 &

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148) were filed, the time for discovery on liability had not closed. Further, Defendant

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Sorby was not involved in the argument of those Motions, and DLIA was only partially

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involved. Given that setting, with discovery still open and evidence and testimony

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potentially still to be discovered, it did not make sense for the court to issue an Order

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listing facts which are established for trial. Now, in the current posture there are

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additional pending dispositive motions: 1) Defendant Sorby’s Motion for Summary

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Judgment (ECF No. 175); 2) Plaintiffs’ Motion for Summary Judgment against Sorby

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ORDER - 3

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(ECF No. 180); and 3) Defendant DLIA’s Motion to Dismiss and Joinder in Sorby’s

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Motion for Summary Judgment (ECF No. 185). The court exercises its discretion and

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declines Plaintiffs’ request to issue an order stating material facts that are allegedly

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established in the case.

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IT IS HEREBY ORDERED:

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Plaintiffs’ Motion for Reconsideration (ECF No. 173) is DENIED.

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IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to

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counsel.
Dated this 27th day of April, 2015.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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ORDER - 4