MEMORANDUM AND ORDER RE: MOTION TO RECONSIDER
On August 11, 2011, defendants filed a motion to dismiss the Complaint on the ground that it was barred by the statute of limitations. (Docket No. 12.) On October 31, 2011, the court issued an Order granting defendants' motion to dismiss. (Docket No. 23.) Presently before the court is plaintiff's motion for reconsideration of the court's October 31, 2011, Order. (Docket No. 25.)
Reconsideration is an "extraordinary remedy" which should be used "sparingly in the interests of finality and the conservation of judicial resources." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see also Sch. Dist. No. 1J, Multonomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (stating that reconsideration should only be granted in "highly unusual circumstances"). A motion for reconsideration "should not merely present arguments previously raised, or which could have been raised in the initial . . . motion." United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1130 (E.D. Cal. 2001) (citing Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985)).
Rule 60(b) "provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) 'extraordinary circumstances' which would justify relief." Sch. Dist. No. 1J, 5 F.3d at 1263 (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)). Under Rule 60(b), reconsideration is generally only appropriate where 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 Westlands Water Dist., 134 F. Supp. 2d at 1131.
Plaintiff does not present the court with newly discovered evidence, nor does it present any new caselaw that would constitute an intervening change in controlling law. Plaintiff argues that the court's prior Order made a "clear error" because plaintiff was not granted leave to amend its complaint. (Mot. for Recons. at 1:8-10.) Specifically, plaintiff alleges that granting leave to amend would not be futile in this case because, under the California Uniform Commercial Code ("CUCC"), plaintiff's retention of the Magnum share certificates means that it is still a Magnum shareholder. (Id. at 3:20-6:22.) Plaintiff did request leave to amend its complaint in its opposition to the motion to dismiss, however, plaintiff did not rely on the CUCC in arguing for leave to amend. In fact, plaintiff did not raise the CUCC at all before filing this motion.
A. Presentation of New Arguments
The local rules for the Eastern District of California
present additional guidelines for parties wishing to seek a motion for reconsideration. See Local R. 230(j)(3). Among other requirements, the moving party must include:
(3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and
(4) why the facts or circumstances were not shown at the time of the prior motion.
Id. These rules were intended to prevent litigants from bringing motions for reconsideration based on facts and legal authority that could have, and should have, been raised during the original motion.
Plaintiff admits that "the application of the [CUCC] was not explicitly raised" during the motion to dismiss. (Mot. for Recons. at 3:1-2.) Indeed, plaintiff's motion for reconsideration reveals that the decision to not raise arguments based on the CUCC was a deliberate strategic decision. Plaintiff admits that it "considered the issues surrounding the existence of the contractual relationships to be more complex, and those associated with the inherent nature of the certificated stocks to be less open to interpretation; and focused accordingly in its presentations to the Court." (Id. at 7:17-20.) It appears that plaintiff assumed that the court would afford it a second bite at the apple if its first legal strategy failed. Plaintiff states that it "presumed that . . . it would be granted leave to amend to clarify application of the [CUCC] to issues relating to the transfer of its stock certificate in Magnum." (Id. at 3:16-19.)
If plaintiff felt that the CUCC provisions justified amendment of the Complaint, plaintiff would have been better served by informing the court of the application of the CUCC in its opposition to the motion to dismiss.*fn1 Plaintiff claims that it raised the importance of possession of the share certificates during oral argument, however this passing reference never mentioned the applicability of the CUCC nor did it address how possession of the share certificates functioned to extend the statute of limitations.
Plaintiff argues that the local rules and caselaw regarding Rule 60(b) should be applied differently in this case because the underlying Order was not made on the merits of the case, but rather on statute of limitations grounds. (Reply to Opp'n to Mot. for Recons. at 1:9-18.) The nature of the underlying judgment is irrelevant and plaintiff presents no authority suggesting otherwise. Plaintiff was presented with a more than adequate opportunity to show why its claims were not barred by the statute of limitations. A judgment is not intended to be a rough draft for losing parties to take pot shots at. Arguments raised for the first time in a motion for reconsideration are deemed waived. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (finding that a district court did not abuse its discretion when ...