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McNamara v. Royal Bank of Scotland Group, Plc

United States District Court, Ninth Circuit

May 9, 2013

PATRICK McNAMARA, Plaintiff,
v.
ROYAL BANK OF SCOTLAND GROUP, PLC, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION [DOC. 61]

M. JAMES LORENZ, District Judge.

On November 5, 2012, the Court granted Defendants Royal Bank of Scotland Group, PLC ("RBS"), Citizens Financial Group, Inc., doing business as RBS Citizens N.A. ("Citizens"), and The Kroger Company ("Kroger")'s motion to compel Plaintiff Patrick McNamara's claims for alleged violations of the Telephone Consumer Protection Act ("TCPA") to arbitration.[1] Plaintiff now moves for reconsideration of the aforementioned order compelling the parties to arbitration. Defendants oppose.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 62.) For the following reasons, the Court DENIES Plaintiff's motion for reconsideration. (Doc. 61.)

I. LEGAL STANDARD

Once judgment has been entered, reconsideration may be sought by filing a motion under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from judgment). See Hinton v. P. Enter., 5 F.3d 391, 395 (9th Cir. 1993).

"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 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). "Indeed, a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Id. (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)) (internal quotation marks omitted). Further, a motion for reconsideration 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. Id. It does not give parties a "second bite at the apple." See id. Finally, "after thoughts" or "shifting of ground" do not constitute an appropriate basis for reconsideration. Ausmus v. Lexington Ins. Co., No. 08-CV-2342-L, 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2009).

Similarly, Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir.1994) (citing Ben Sager Chem. Int'l v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977)). Under Rule 60(b), the court may grant reconsideration based on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. Fed.R.Civ.P. 60(b). That last prong is "used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007).

II. DISCUSSION

Plaintiff argues that the reconsideration is appropriate for two reasons: (1) the Court committed clear error when it stated that Plaintiff failed to cite any binding legal authority at the state or federal level when he argued that the arbitration agreement is illusory; and (2) Schnabel v. Trilegiant Corp., 697, F.3d 110 (2d Cir. 2012), presents an intervening change in controlling law. The Court addresses both arguments below.

A. Clear Error

In the order compelling arbitration, the Court states that

Plaintiff also argues that the arbitration agreement is illusory because it permits Defendants to unilaterally modify the terms at any time. However, he fails to cite any binding legal authority in doing so. Plaintiff does not cite a single case from California or Connecticut at the state or federal level. Thus, the Court rejects this argument.

(Order Compelling Arbitration 11 n.6 (citations omitted).) Plaintiff argues that this portion of the order was based on a mistake of fact because he did cite to a Connecticut state and federal case in a footnote supporting his argument that the arbitration agreement is illusory. (Pl.'s Mot. 2:22-4:4.) Specifically, in the approximate two-and-a-half pages of text that Plaintiff used to argue that the arbitration agreement is unenforceable because it is illusory, Plaintiff directs the Court's attention to a footnote in which he cites to a Connecticut state-court and a federal district court case. ( Id. )

Plaintiff attributed the footnote that contains these two cases to the proposition that "[A] promise where the promisor retains an unlimited right to decide later the nature or extent of his or her performance' is illusory." (Pl.'s ...


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