The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER DENYING REQUEST FOR ORAL ARGUMENT ON RECONSIDERATION
[Doc. No. 199]
AND RELATED COUNTER CLAIMS.
The Defendants, The Jerry and Vickie Moyes FamilyTrust, (hereinafter the "Trust" or "JVMFT") filed a motion, [Doc. No. 199], requesting oral argument that essentially seeks reconsideration of two issues: "(1) whether, as a matter of law, the parties could have possibly entered into an enforceable agreement for the Trust to "buy out" Pinnacle's membership interest in MFC; and (2) whether the Trust is entitled to pursue damages relating to substantial liabilities it incurred in operating the gyms after Pinnacle ultimately ceased participating in the business." Doc. No. 199, at 2-3. Plaintiff, Pinnacle Fitness and Recreation Management, (hereinafter "Pinnacle"), filed an opposition, [Doc. No. 202], and the Trust filed a reply, [Doc. No. 203]. The hearing on this motion set for March 2, 2012 at 1:30 p.m. is hereby VACATED as the Court finds this motion appropriate for submission on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. Based upon the parties moving papers and for the reasons set forth below, the Trust's motion for oral argument on reconsideration is hereby DENIED.
A motion for reconsideration is "appropriate if the district court is provided with (1) newly discovered evidence; (2) clear error or manifest injustice, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County, Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). In addition, Local Civil Rule 7.1(i)(1) provides that a motion for reconsideration must include an affidavit or certified statement of a party or attorney "setting forth the material facts and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was made thereon, and (3) what new and different facts and circumstances are claimed to exist which did not exist, or were not shown upon such prior application." Local Civ. R. 7.1(i)(1).
The Trust's request for oral argument seeks reconsideration of the following two issues decided by the Court in Ruling on the Trust's motion for summary judgment, [Doc. No. 169], and Pinnacle's motion for partial summary judgment, [Doc. No. 170]: (1) whether the alleged Buy-Out Agreement violated Nevada's Statute of Frauds; and (2) whether the Trust is entitled to Operational Damages sought in its counterclaims. Doc. No. 199, at 2-3.
I. Whether the Alleged Buyout Agreement Violates Nevada's Statute of Frauds
The Trust argues that the Court should reconsider the purely legal issue of whether the alleged buyout agreement violates Nevada's Statute of Frauds. See Georgiou Studio, Inc. v. Boulevard Invest.,
, 663 F. Supp. 2d 973, 980 (D. Nev. 2009) (sufficiency of a writing under the Nevada Statute of Frauds is a question of law); Valdez v. Employers Ins. Co. of Nev., 123 Nev. 170, 174 (2007) (statutory interpretation is a question of law). Although the Court denied the Trust's Motion for Summary Judgment on Pinnacle's Buy-Out claims on the grounds that the Trust failed to demonstrate "the absence of a genuine dispute of material fact . . .," the Trust argues that the Court did not expressly resolve the issue of whether the statute of frauds applied to preclude enforcement of the Buy-Out Agreement. In support of the instant request, the Trust cites several cases,*fn1 however, these cases do not support the reconsideration requested. In Sierra Club, Hawaii Chapt. the Court allowed reconsideration because it had mistakenly denied summary judgment on two of the plaintiffs' claims.*fn2 In In re JDS Uniphase Corp. Securities Lit., the Court allowed Defendants to file a motion for reconsideration, because the Court had not ruled on particular issue. In the instant case, the Trust was required to prove its statute of frauds defense as a matter of law on a summary judgment motion and failed to do so. The Court denied the Trust's motion for summary judgment finding the Trust failed to demonstrate the absence of a genuine dispute of material fact with regard to Pinnacle's Buy-Out claims, because the documents and emails cited by the parties' supported conflicting positions.
Furthermore, the Trust does not base their argument on newly discovered evidence, clear error, or an intervening change in controlling law. School Dist. No. 1J, Multnomah County, Or. v. AcandS, , 5 F.3d 1255, 1263 (9th Cir.1993). The Trust has not presented any new arguments entitling them to reconsideration under the rules and is simply rehashing the same arguments they made in their motion for summary judgment. As such, the Trust's request for reconsideration is DENIED.
II. The Trust's Request for Reconsideration of its Damages Counterclaims
Pinnacle moved for partial summary judgment on the Trust's
counterclaim for damages categorized as Operation Damages.*fn3
Pinnacle argued that the Trust's response to Interrogatory
No. 16, which asked the Trust to identify the funding entity for each
capital contribution to the gyms, indicated
that from July 2008 forward, Mr. Moyes, and not the Trust, funded gym
operations.*fn4 [Doc. No. 170-1,
p. 6-7.] In response to Pinnacle's motion, the Trust submitted the
declaration of Elly Penrod, in which she stated that: (1) Mr. Moyes
never personally funded MFC; (2) the source of the inconsistency in
the Trust's interrogatory answer was a ministerial labeling in the
Trust's QuickBooks accounting entries; and (3) the Trust used the same
-8308 bank account to fund all gym operations. [Doc. No. 175, Ex. 5.]
Pinnacle's reply argued that Ms. Penrod's declaration should be barred
by the sham affidavit rule because it contradicted the Trust's prior
interrogatory responses and was not supported by any credible or
The Court found that Pinnacle demonstrated the absence of a genuine issue of material fact that as to the funding source based upon the Trust own interrogatory answers, which shifted the burden of production to the Trust to demonstrate, by affidavit or admissible evidence,*fn5 that there is a genuine issue for trial. Upon review of the Trust's unsupported affidavit from Ms. Penrod, the Court found the explanation provided by Ms. Penrod*fn6 and the contradictory nature of the declaration unpersuasive in light of the Trust's failure to provide documentary support in thier opposition to the motion or to amend their prior response to Interrogatory No. 16. The Court found the sham affidavit rule precluded the Trust from creating a ...