MEMORANDUM AND ORDER RE: MOTION TO RECONSIDER, VACATE, AMEND OR MODIFY THE ORDER OF DISMISSAL ENTERED BY THE COURT ON 4 OCTOBER 2011
On August 16, 2011, the Buena Vista Rancheria of Me-Wuk Indians (the "Tribe") requested permission to appear specially to present a motion to dismiss based on failure to join a necessary and indispensable party under Federal Rule of Civil Procedure 19.
(Docket No. 32.) On October 4, 2011, the court issued an order dismissing the action. (Docket No. 62.) Plaintiffs now move to reconsider, vacate, amend, or modify this court's order of October 4, 2011.
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. Under Rule 59(e), "[r]econsideration 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." Sch. Dist. No. 1J, 5 F.3d at 1263.
A district court may reconsider an order under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend judgment) or Rule 60(b) (relief from judgment or order). Backlund, 778 F.2d at 1388. Plaintiffs frame their motion as being brought under both Rule 59 and Rule 60.*fn1 Plaintiffs do not present the court with newly discovered evidence, nor do they present any new caselaw that would constitute an intervening change in controlling law. For the purposes of this motion, all but one of plaintiffs' claims rests on allegations that the court made a "clear error" or a "mistake" in its prior order. The analysis of these claims would be practically identical under Rules 59(e) and 60(b) because "clear error" and "mistake" require similar showings that the court's prior Order was clearly in error. For only one of plaintiffs' arguments, addressed in subpart B below, does plaintiff appear to specifically rely on the "fraud" factor in Rule 60(b). The court will therefore address plaintiffs' claims under Rule 59(e), see Am. Ironworks, 248 F.3d at 899, with the exception of the one instance where evaluation under Rule 60(b) would be more appropriate.
The majority of plaintiffs' arguments in support of their motion simply restate their original positions opposing the motion to dismiss and do not raise any new issues or identify errors that would justify reconsideration of the court's Order. The first twenty pages of plaintiffs' motion rehash their version of the historical events leading up to the present suit, (Mot. for Recons. at 5:1-20:18), and another thirteen pages reiterate arguments already repeatedly discussed and decided by the court, (id. at 25:4-37:9). Plaintiffs also spend several pages discussing the principals of Rule 19 and when a party should be determined to be both necessary and indispensable. (Id. at 20:20-24:2.) Plaintiffs do appear to have raised three new issues.*fn2 The court will address each in turn.
A. Public Rights Exception
Plaintiffs raise the public rights exception as a reason why the Tribe was not an indispensable party in this litigation. (Id. at 24:7-25:2.) Plaintiffs are making this argument for the first time on their motion for reconsideration.*fn3
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 it declined to address an issue raised for the first time in a motion for reconsideration). Nonetheless, the court will address plaintiffs' public rights exception argument.
The public interest exception "provides that when litigation seeks vindication of a public right, third persons who could be adversely affected by a decision favorable to the plaintiff are not indispensable parties." Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d 1491, 1500 (D.C. Cir. 1995). "[T]he exception generally applies where 'what is at stake are essentially issues of public concern and the nature of the case would require joinder of a large number of persons.'" Id. (quoting Sierra Club v. Watt, 608 F. Supp. 305, 324 (E.D. Cal. 1985)). "[T]he litigation must transcend the private interests of the litigants and seek to vindicate a public right." Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996); see also Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1026 (9th Cir. 2002).
Plaintiffs do not argue that a large number of parties would need to be joined in this case in order to vindicate the public right, nor do they show that the public interest transcends that of the parties' interests. The litigation in this case does not incidentally affect the Tribe and its gaming, rather it is aimed directly at the gaming activities of the Tribe. The public rights exception is therefore inapplicable in this action.
B. Misrepresentations of Fact
Plaintiffs outline six statements that they allege were misrepresentations made by the Tribe in support of its motion to dismiss. (Mot. for Recons. at 37:11-42:21.) Plaintiffs appear to be combining the requirements under Rule 59(a)(1)(B) and 59(a)(2) that provide that new trials may be granted based on mistake of fact, with the relief available under Rule 60(b) when the opposing party engages in misrepresentation or misconduct. As plaintiffs are unable to request a new trial under Rule 59(a) and plaintiffs' arguments appear to be solely based on allegedly fraudulent statements made by the Tribe, the court will presume that plaintiffs are requesting reconsideration based on misrepresentations under Rule 60(b).
In order to prevail on a Rule 60(b) motion based on misrepresentations by the Tribe, plaintiffs must show that "the verdict was obtained through fraud, misrepresentation, or other misconduct and the conduct complained of prevented the losing party from fully and fairly presenting the defense." De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000). The fraudulent conduct must "not be discoverable by due diligence before or during ...