The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge
ORDER DENYING PLAINTIFF'S
MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE,
REQUEST FOR CLARIFICATION (DOC. NO. 58)
On February 3, 2011, Plaintiff Douglas J. Campion filed a Motion for Reconsideration or, in the Alternative, Request for Clarification of the Court's denial of Plaintiff's earlier motion for class certification. (Doc. No. 58.) Defendant Old Republic Home Protection Company, Inc. has filed a brief in opposition and Plaintiff has also filed a reply in support of his motion. (Doc. No. 61 and 62.) Pursuant to CivLR 7.1.d.1, the motion is suitable for disposition without oral argument.*fn1 After due consideration of the parties' briefs, the Court DENIES Plaintiff's motion.
Plaintiff's motion is brought under CivLR 7.1.i.1 and the Court's "inherent power to reconsider and modify its interlocutory orders...." CivLR 7.1.i.1 allows a party to apply for reconsideration "[w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part." The rule requires a party to show "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." CivLR 7.1.i.1.*fn2 Although Plaintiff's request invokes CivLR 7.1.i.1 and the Court's inherent authority to modify prior orders, the parties agree reconsideration may be granted under standards applicable to a Fed. R. Civ. P. 59(e) post-judgment motion for reconsideration, which allows for reconsideration when "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," citing School Dist. No. 1J, Multnomah County, Or. v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for reconsideration may not be used to get a second bite at the apple. It is not a method by which to raise arguments or present evidence for the first time when they could reasonably have been raised earlier [Id.; see also Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877. 890 (9th Cir. 2000)] or to reargue an issue [Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 899 (9th Cir. 2001)].
Here, Plaintiff only invokes "clear error" as a basis for reconsideration, arguing the Court's prior decision was clearly erroneous on five counts. The Ninth Circuit has not defined a standard for "clear error," although it has been discussed by other circuits. As the Fifth Circuit Court of Appeals has observed, "[i]n the context of the law of the case doctrine, "clearly erroneous" is a very exacting standard. 'Mere doubts or disagreement about the wisdom of a prior decision of this or a lower court will not suffice for this exception. To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must be dead wrong.'" Hopwood v. Texas, 236 F3d 256, 273 (5th Cir. 2000) (citation omitted). The Seventh Circuit has also set a high standard for a party filing a motion for reconsideration on the basis of error, finding the movant must demonstrate a "wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000).
The Court Did Not Misapply Dukes, Ignore Plaintiff's Evidence, or Rely Exclusively on Evidence Submitted by Defendant
In his first argument, Plaintiff contends the Court ignored his evidence that Defendant financially incentivizes its contractors to deprive class members of the benefits of their home warranty plans and instead relied exclusively on statistical evidence submitted by Defendant. Memorandum of Points & Authorities in Support of Motion for Reconsideration, p. 3. In doing so, Plaintiff submits the Court misinterpreted and misapplied Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) and essentially conducted a mini-trial on Plaintiff's claims. The Court was, Plaintiff argues, "bound to take the substantive allegations of the complaint as true," pursuant to Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975). Id.
Plaintiff's argument the Court misinterpreted and misapplied Dukes rehashes his argument from the motion for class certification about the appropriate legal standard and is not a proper basis for reconsideration. Am. Ironworks & Erectors, Inc, 248 F.3d at 899. Furthermore, the Court did not, as Plaintiff posits, "ignore all of Plaintiff's evidence." To the contrary, the Court accepted Plaintiff's substantive allegations as true but determined that the claims were not capable of proof without examining class members' claims on an individualized basis. The order denying class certification is replete with citations and references to the Complaint, Plaintiff's arguments, and Plaintiff's evidence. See e.g., Order Denying Plaintiff's Motion for Class Certification and Defendant's Motion to Strike, p. 2, ln. 6-18; pp. 2-3, ln. 25-9; p. 6, ln. 22-26; p. 8, ln. 7-16; p. 9, ln. 7-14; pp. 10-11, ln. 28-7; pp. 13-14, ln. 13-12; pp. 15-16, ln. 25-3; p. 18, ln. 13-20; pp. 19-20, ln. 21-5; pp. 21-22, ln. 10-11; p. 25, ln. 14-19; pp. 26, ln. 21-27; p. 27, ln. 17-25; p. 28, ln. 11-15; p. 29, ln.11-12; p. 30, ln. 17-23; and pp. 31-32, ln. 23-3.
As the Court previously observed, although a court should not conduct a preliminary inquiry into the merits of a plaintiff's case when considering a motion for class certification, the Court must conduct a "rigorous analysis" to ensure the prerequisites of Rule 23(b) are actually satisfied, not just presumed from the pleadings. Dukes, 603 F.3d at 581. The "rigorous analysis" requirement is not, as Plaintiff posits, simply an interpretation of the Dukes case, but rather is derived from long-standing legal precedent. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).
In some instances, the pleadings will be sufficient to demonstrate whether a class should be certified, but often courts are required to look "behind the pleadings" even to issues overlapping with the merits of the underlying claims. Dukes, 603 F.3d at
See also Falcon, 457 U.S. 160 ("[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.") The Court is not required to "unquestioningly accept a plaintiff's arguments as to the necessary Rule 23 determinations" and may consider facts that are relevant to the Rule 23 determination, even though the facts may also relate to the underlying merits of the case. Dukes, 603 F.3d at 586, 589.
In this case, it was necessary for the Court to probe behind the
pleadings to make findings on the Rule 23 certification decision.
Although the Court cited multiple reasons why individual issues
overwhelmed issues that are common to the class, Plaintiff takes
exception to the Court's consideration of statistical evidence
proffered by Defendant regarding the handling of service claims.
Memorandum of Points & Authorities in Support of Motion for
Reconsideration, p. 5. This evidence, however, which was not disputed
or challenged by Plaintiff at the time, was not used to evaluate or
make a determination on the merits of Plaintiff's claims. The Court
accepted Plaintiff's substantive allegations, but determined due to
multiple factors that individual issues predominated in this case and,
therefore, class certification was not appropriate.*fn3
Order Denying Plaintiff's Motion for Class Certification and
Defendant's Motion to Strike, pp. 16, 19, 20, 26-27, 28-29. The fact
that the Court ...