UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 22, 2008
HCL PARTNERS LIMITED PARTNERSHIP, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
LEAP WIRELESS INTERNATIONAL, INC., S. DOUGLAS HUTCHESON, DEAN M. LUVISA, AMIN I. KHALIFA AND PRICE WATERHOUSECOOPERS, LLP, DEFENDANTS.
KENT CARMICHAEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
LEAP WIRELESS INTERNATIONAL, INC., S. DOUGLAS HUTCHESON, MARK H. RACHESKY, AMIN I. KHALIFA AND DEAN M. LUVISA, DEFENDANTS.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION FOR RECONSIDERATION
Westchester Capital Management, Inc. ("Westchester") and Green & Smith Investment Management LLC ("G&S") have filed a motion for reconsideration of the Court's order appointing New Jersey Carpenters Pension and Benefit Fund as Lead Plaintiff. The motion for reconsideration is DENIED.
"Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A party's failure to file documents in connection with the underlying motion or opposition does not turn late-filed documents into "newly discovered evidence." Id. To prevail on the ground of newly discovered evidence, the movant must show that the evidence "(1) existed at the time of the trial or proceeding at which the ruling now protested was entered; (2) could not have been discovered through due diligence; and (3) was of such magnitude that production of it earlier would have been likely to change the disposition of the case." Duarte v. Bardales, 526 F.3d 563, 573 (9th Cir. 2008).
Westchester and G&S argue that the evidence submitted in support of their motion to be appointed lead plaintiff was sufficient to establish that they had the authority to sue on behalf of the funds. The Court disagrees for the reasons set forth in the Court's previous order. Behren declared that Westchester and G&S have unrestricted decision-making authority with respect to the funds that they advise and manage, but did not state that the funds had specifically authorized Westchester and G&S to sue on their behalf. (Behren Decls. of 1/16/08 and 3/19/08). Although Behren stated that he was authorized to "undertake all acts" on Westchester and G&S's behalf, including commencing legal actions, again, Behren failed to state that the funds had specifically authorized Westchester and G&S to sue on their behalf. (Behren Decl. of 1/16/08, ¶ 2.)
In support of their motion for reconsideration, Westchester and G&S have submitted additional evidence showing that they have the authority to sue on behalf of the funds, including a Consent Action of the Board of Trustees for The Merger Fund and The Merger Fund VL, a Consent Action of the Trustee of the GS Master Trust, and letters from Chief Operating Officers of investment managers to certain of the funds. However, all of these documents are dated after the Court issued its decision. Westchester and G&S presumably could have obtained this evidence at an earlier date but failed to do so. Therefore, the evidence is not "newly discovered evidence" and does not warrant reconsideration of the Court's order appointing New Jersey Carpenters Pension and Benefit Fund as Lead Plaintiff.*fn1
Therefore, Westchester and G&S's motion for reconsideration is DENIED.
IT IS SO ORDERED.