The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER DENYING PLAINTIFF'S MOTION TO AMEND AND/OR FOR RELIEF FROM JUDGMENT [DOC. # 86]; AND DENYING PLAINTIFF'S MOTION FOR DETERMINATION THAT THERE IS NO REASON FOR DELAY IN ENTERING JUDGMENT ON COMPLAINT [DOC. # 85]
Pending before this Court are the motions to amend, and/or for relief from, this Court's judgment and for a determination that there is no reason for delay in entering judgment filed by plaintiff Technica, L.L.C. ("Technica" or "plaintiff"). The motions have been fully briefed by the parties. After a careful consideration of the record as a whole, and for the reasons set below, this Court DENIES both of plaintiff's motions.
Plaintiff filed a complaint on September 8, 2008, alleging two causes of action: (1) under the Miller Act, 40 U.S.C. §§ 3131, et seq., against defendant Candelaria Corporation ("Candelaria") and Candelaria's payment bond surety, defendant Carolina Casualty Insurance Company ("CCIC"); and (2) for breach of contract against defendant Otay Group, Inc. ("Otay"). Plaintiff's claims stem from construction work performed for a federal construction project known as "ICE El Centro SPC - Perimeter Fence Replacement/Internal Devising Fence Replacement" located in El Centro, California ("the project"). The project consisted of replacement and construction of fencing at the El Centro United States Immigration and Customs Enforcement ("ICE") detention facility. Candelaria was the general contractor for the project and CCIC was Candelaria's surety on the payment bond. Candelaria entered into a subcontract with Otay on December 12, 2007, in which Otay agreed to supply labor and equipment necessary to complete a portion of the project. Technica subsequently entered into an agreement with Otay concerning work on the project. On June 6, 2008, Otay's subcontract with Candelaria was terminated for cause.
Candelaria filed a counterclaim against Technica on May 4, 2009, and Technica filed an answer to the counterclaim on May 26, 2009. Defendants Candelaria, CCIC and Otay (collectively "defendants") filed a motion for summary judgment on September 28, 2009, seeking judgment in their favor on both of plaintiff's claims on the grounds that plaintiff was barred from filing suit in California because it did not hold a California contractor's license. This Court, on June 29, 2010, granted defendants' motion. The instant motions for reconsideration or for certification for interlocutory appeal of that ruling were filed by plaintiff on July 27, 2010. Oppositions to the motions were filed on October 12, 2010 and reply briefs were filed on October 19, 2010. This Court subsequently took the motions under submission without oral argument. See CivLR 7.1(d.1).
Plaintiff moves to amend, or for relief, from the judgment entered by this Court by order filed on June 29, 2010, pursuant to Rules 59(e) and 60(b). Plaintiff separately moves for a determination by this Court that there is no just reason to delay entry of final judgment on plaintiff's claims against defendants for appeal purposes.
1. Plaintiff's Motion to Amend or for Relief from Judgment
The reconsideration of a court order under Federal Rule of Civil Procedure 59(e) (motion to alteror amend judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from final judgment or order) is appropriate only 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. See School Dist. No. 1J, Multonomah County, Or. v. Acands, Inc.,5 F.3d 1255, 1263 (9th Cir. 1993). Materials available at the time of filing of an opposition are not "newly discovered evidence" warranting a reconsideration of summary judgment. Trentacosta v. Frontier Pacific AircraftIndus., Inc., 813 F.2d 1553, 1557 (9th Cir. 1987); Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985).
Rule 60(b) permits relief from a judgment or an order for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . .; (3) fraud . . . misrepresentation, or other misconduct by an adverse party; (4) a void judgment; (5) satisfaction, release, or discharge of the judgment; or (6) "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). Rule 60(b)(6) "has been used sparingly as an equitable remedy to prevent injustice. The rule is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." United States v. Alpine Land & Reservoir, Co., 984 F.2d 1047, 1049 (9th Cir. 1993), cert. denied, 114 S. Ct. 60 (1993).
The Ninth Circuit has instructed that "[i]n determining whether Rule 60(b) applies, courts should be mindful that the rules are to be construed to achieve the just determination of every action." Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983). However, there is also a compelling interest in the finality of judgments that should not be disregarded lightly. Id. Reconsideration under Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from judgment) is appropriate if "the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly ...