Plaintiff seeks reconsideration of the court's order granting defendant's motion for summary judgment and closing this case (ECF 55). (ECF 58.) Defendant opposes reconsideration. (ECF 61.) This matter was submitted without a hearing. For the following reasons, plaintiff's motion is denied.
"Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal citations and quotation marks omitted). The burden on the moving party is high. See, e.g., Sec. and Exch. Comm'n v. Pattison, No. C-08-4238 EMC, 2011 U.S. Dist. LEXIS 61922, at *4-5 (N.D. Cal. Jun. 9, 2011). Rule 59(e) "may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quotation marks and citation omitted). The grounds for granting a motion under Federal Rule of Civil Procedure 59(e) are: "1) . . . 'to correct manifest errors of law or fact upon which the judgment is based;' 2) the moving party presents 'newly discovered or previously unavailable evidence;' 3) the motion is necessary to 'prevent manifest injustice;' or 4) there is an 'intervening change in controlling law.'" Turner v. Burlington Northern Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999)) (emphasis in original). "'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Concrete Pipe and Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). "[R]review under the 'clearly erroneous' standard is significantly deferential . . . ." Id. at 623; United States Fidelity & Guaranty Co. v. Lee Investments LLC, 2009 U.S. Dist. LEXIS 90579, at *9 (E.D. Cal. Sep. 29, 2009) (The district court "enjoys considerable discretion in granting or denying the motion."). "To succeed [on a motion for reconsideration], a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Enriquez v. City of Fresno, No. CV F 10-0581 AWI DLB, 2011 U.S. Dist. LEXIS 29998, at *3 (E.D. Cal. Mar. 23, 2011).
Federal Rule of Civil Procedure 60(b)*fn1 provides, in pertinent part: "On motion and just terms, the court may relieve a party . . . from a final judgment . . . for . . . (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . (5) [where] applying [the judgment] prospectively is no longer equitable; or (6) any other reason that justified relief."
Plaintiff contends the court's finding Kellogg's email, which was sent in response to an email from John Gummert, a loss prevention investigator, asking if new equipment was needed at his store, was inadmissible was a mistake. (ECF 58-1 at 3.) Plaintiff specifically contends she had already deposed Kellogg before receiving the email and "was unable to question any witnesses about the email" as discovery had closed. (Id. at 4.) The court previously considered and dismissed this very argument and declines to reconsider the question here. (See ECF 55 at 8 n.9.)
Plaintiff further contends she has "since authenticated this email." (ECF 58-1 at 4.) In support of this motion, plaintiff presents "new evidence" in the form of deposition testimony of Kellogg, allegedly authenticating this email. To prevail on a Rule 59 or 60(b)(2) motion, "the movant must show the evidence (1) existed at the time of the trial, (2) could not have been discovered through due diligence, and (3) was 'of such magnitude that production of it earlier would have been likely to change the disposition of the case.'" Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990) (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987)). Plaintiff has failed to show any of these three factors are met. This deposition does not constitute newly discovered evidence; rather, it "could have been discovered with reasonable diligence." Coastal Transfer Co., 833 F.2d at 212; see also Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) ("A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." (citation omitted)). Indeed, the underlying motion for summary judgment was filed on July 20, 2011 and, according to plaintiff, she was in possession of the email as of June 21, 2011. (Keister Decl. ¶ 4, ECF 58-2.) Plaintiff acknowledges she could have filed a declaration in accordance with Federal Rule of Civil Procedure 56(d), but states she "did not think it was necessary" and "believed and understood that such a declaration could be filed with a Motion to Alter or Amend or for Relief from Judgment." (Id. ¶¶ 4, 5.) Moreover, introduction of this deposition testimony would not have changed the disposition of this case. As defendant notes, "This email was written five months after the termination of Plaintiff's employment. It makes no reference to either Plaintiff or the termination of her employment, and it contains nothing from which a reasonable person could infer a retaliatory motive or discriminatory motive on the basis of age or gender." (ECF 61 at 4.) The deposition testimony itself extinguishes any question of material fact plaintiff may have contended was supported by the email; Kellogg specifically testified that he wanted the new equipment to "get rid of . . . some of the employees that [were] stealing . . . because we'd been having theft problems" (Keister Decl., Ex. 1, 21:22-23, 25, ECF 58-2), making no mention of age or gender of employees. Accordingly, this "newly discovered" evidence does not support reconsideration.
Furthermore, plaintiff's "surprise" at the court's ruling and self-described "excusable neglect," invoking Rule 60(b)(1), do not warrant relief. Plaintiff is represented by counsel, whose responsibility it is to familiarize herself with the rules applicable in this court. See Nat'l Indus., Inc. v. Republic Nat'l Life Ins. Co., 677 F.2d 1258, 1270 (9th Cir. 1982) ("The party opposing a motion for summary judgment need present only so much of its case as is sufficient to defeat the motion and may preserve the remainder for trial. We are of the opinion, however, that when this approach is utilized, the opposing party must bear the risk of misevaluating the sufficiency of its response to the motion. . . . Our judicial system cannot afford multiple and repetitious hearings and appeals resulting from a litigant's erroneous expectations of success."); see also ACEquip Ltd. v. Am. Eng'g Corp., 218 F.R.D. 364, 366 (D. Conn. 2003) (plaintiffs' failure to file a status report did not constitute a "surprise" where plaintiffs knew of their responsibility to do so). Plaintiff's counsel's belief that she did not need to file a Rule 56(d) declaration with her opposition and instead could file it "with a Motion to Alter or Amend or for Relief from Judgment" (Keister Decl. ¶ 5) does not qualify as excusable neglect. Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir. 2006); Thiel v. GMAC Mortg., LLC, No. 2:10-cv-00645-MCE-DAD, 2011 U.S. Dist. LEXIS 39848, at *4 n.5 (E.D. Cal. Apr. 6, 2011) ("an attorney's ignorance of the law or carelessness does not constitute entitlement to relief under the law"); but see Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) ("ignorance of the rules" and "mistakes construing the rules" "do not usually constitute excusable neglect" but "that possibility is by no means foreclosed" (quotation marks, citation, and emphasis omitted)). An attorney's ignorance of the way in which a rule operates, where the language of the rule is unambiguous, is not grounds for relief. See Allmerica Financial Life Ins. v. Lewellyn, 139 F.3d 664, 666 (9th Cir. 1997); see also McCurry v. Adventist Health System/Sunbelt, Inc., 298 F.3d 586, 595 (6th Cir. 2002); Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 404 (8th Cir. 2000). Rule 56(d) clearly states in no uncertain terms: "If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Plaintiff's belief that she could file such a declaration with a motion for reconsideration does not explain or excuse plaintiff's failure to file such a declaration before the court's resolution of this matter. Neither does her belief the court would find the evidence presented, which was wholly unauthenticated,*fn2 admissible. In fact, her stated belief she could file this declaration with a motion for reconsideration suggests the failure to file such a declaration was part of counsel's litigation strategy. "Rule 60(b) does not provide relief from 'free, calculated [and] deliberate choices.'" Chang v. Smith, 778 F.2d 83, 86 (1st Cir. 1985) (quoting Ackerman v. United States, 340 U.S. 193, 198 (1950)); Latshaw, 452 F.3d at 1101 ("Rule 60(b)(1) is not intended to remedy the effects of a litigation decision that a party later comes to regret . . . .").
Even so, the court will analyze the Pioneer-Briones factors in determining whether plaintiff has shown excusable neglect as contemplated by Rule 60(b)(1). Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379. See Lemoge v. United States, 587 F.3d 1188, 1194 (9th Cir. 2009);
E. & J. Gallo Winery v. Cantine Rallo, S.P.A., 430 F. Supp. 2d 1064, 1087 (E.D. Cal. 2005) (In Pioneer, "the Supreme Court held that excusable neglect could encompass some intentional failures to act, and explained that a court should determine whether such intentional failures are excusable by examining a number of equitable factors."). Specifically, the court analyzes: "(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Lemoge, 587 F.3d at 1194 (internal quotation marks and citation omitted).*fn3
Defendant contends it will be prejudiced if the court grants plaintiff's motion because "[m]emories have . . . faded . . . and there is a greater likelihood that Safeway would not be able to locate and produce all of the witnesses able to refute Plaintiff's claims were the case to proceed to trial now on the basis of the now-authenticated email" and there will be "a year or more of additional delay before trial . . . ." (ECF 61 at 9-10.) "Prejudice requires greater harm than simply that relief would delay resolution of the case." Lemoge, 587 F.3d at 1196 (citation omitted). However, defendant will be prejudiced if the motion were granted, by the additional time and expense required to address the e-mail. Cf. Patriot Rail Corp. v. Sierra R.R. Co., No. 2:09-cv-00009-MCE-EFB, 2011 U.S. Dist. LEXIS 83999, at *9-10 (E.D. Cal. Aug. 1, 2011) ("Applying the Pincay factors to the present case . . . is unnecessary. [E]xcusing the [movant's] mistaken interpretation . . . would not excuse [movant's] untimely motion and, thus, does not justify the requested relief."); Allen v. Shepard, No. CIV S-06-1923 FCD DAD P, 2010 U.S. Dist. LEXIS 54957, at *4 (E.D. Cal. May 7, 2010) (citing Casey v. Albertson's ...