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Faulk v. Sears Roebuck and Co.

United States District Court, Ninth Circuit

May 17, 2013

KEVIN FAULK, Plaintiff,
v.
SEARS ROEBUCK AND CO., Defendant.

ORDER DENYING MOTION OF PLAINTIFF FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff Kevin Faulk has filed a Motion for Leave to File a Motion for Reconsideration, or in the Alternative, a Motion for Leave to File a Motion to Alter or Amend the Order Denying Plaintiff's Motion for Class Certification.[1] Having carefully considered the motion, the Court's Order, for the reasons set forth below, the Court hereby DENIES the Motion.

Plaintiff bases his motion on footnote 11 in the Court's Order, which Plaintiff believes fails to address the measure of damages available under the California Song-Beverly Act and California Unfair Competition Law ("UCL"):

Plaintiff seeks reconsideration of the opinion on two grounds. First, Named Plaintiff identified the injury and measure of damages available under Song Beverly as the purchase price of the plan, citing Sanbrook v. Office Depot, 2009 U.S. Dist. LEXIS 30857 (N.D. Ca. 2009). Second, omitted from the opinion's discussion (in FN 11 cited above) of the damages sought by Plaintiff was section (c) of the Prayer for Relief, in which Plaintiff requested "an order awarding restitution and disgorgement of all charges paid by Plaintiff and the Class Members and/or ill-gotten gains realized by Sears as a direct result of Sears' unlawful, unfair and/or fraudulent business practices complained of herein."... Plaintiff will explain why this type of relief makes his claim under the UCL's unlawful prong amenable to certification. Because the decision neither considers the injury and types of damages available under these two claims nor whether those issues can be tried on a common basis, Plaintiff respectfully seeks reconsideration of the decision.

(Motion at 3-4.)

As to the first ground, Plaintiff's Motion for Class Certification did not identify the damages suffered by purchasers of tires and tire warranties from Sears as "the purchase price of the plan" or in support, cite to Sanbrook v. Office Depot, 07-CV-05938, Dkt. No. 131 at 8 (N.D. Cal. Mar. 30, 2009). Rather, in his Reply brief, Plaintiff quoted a passage from Sanbrook in which Judge Whyte identified "the purchase price of [Office Depot's Performance Protection] Plan" as the injury suffered by each class member in Sanbrook. If the Court did not consider certain facts or arguments, it was because Plaintiff did not present those facts or arguments to the Court. That is not a basis for the Court to grant leave to file a motion for reconsideration.

As to the second ground, it appears that Plaintiff seeks leave to present an argument that was previously available but not advanced in his earlier motion by arguing, albeit mistakenly, that the Court failed to consider facts alleged in his complaint with respect to the remedies sought under the UCL. Curiously, Plaintiff cites to the Court's discussion of Plaintiff's Song-Beverly Act claim to make this argument. The Court's discussion of his UCL claim specifically addressed the remedies sought under the UCL: "[t]he damages Faulk seeks under the UCL include an order awarding restitution and disgorgement...'" (Dkt. No. 91 at 16 n.15.)

Accordingly, with respect to the pending motion, Plaintiff has failed to present a basis for the Court to permit him to file a motion for the Court to reconsider this issue. Plaintiff's Motion for Leave to File a Motion for Reconsideration, or in the Alternative, a Motion for Leave to File a Motion to Alter or Amend the Order Denying Plaintiff's Motion for Class Certification is DENIED.

This terminates Docket No. 92.

IT IS SO ORDERED.


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