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Wahoo International, Inc. v. Phix Doctor, Inc.

United States District Court, S.D. California

January 29, 2015

WAHOO INTERNATIONAL, INC., Plaintiff,
v.
PHIX DOCTOR, INC., a Florida Corporation; and DOES 1-10, Defendant.

ORDER GRANTING IN PART DEFENDANT'S MOTION TO ALTER OR AMEND [Dkt. No. 84.]

GONZALO P. CURIEL, District Judge.

Before the Court is Defendant's motion to alter or amend, pursuant to Federal Rule of Civil Procedure 59(e) and 60(b), the Court's order, filed on December 2, 2014, denying Plaintiff's motion for default judgment and Defendant's motion to set aside default as moot, and granting Plaintiff's request for attorneys' fees and costs. (Dkt. No. 84.) Plaintiff filed an opposition and Defendant filed a reply. (Dkt. Nos. 91, 92, ) Based on the briefs, supporting documents, and the applicable law, the Court GRANTS in part Defendant's motion to alter or amend the Court's order. (Dkt. No. 80.)

Background

Defendant brings a motion to reconsider under Federal Rule of Civil Procedure ("Rule") 59(e) and Rule 60(b). Plaintiff opposes.

Rule 59(e) provides for the filing of a motion to alter or amend a judgment. Fed.R.Civ.P. 59(e). Reconsideration of a motion for attorneys' fees is not proper under Rule 59(e) because the motion does not seek to alter the final judgment. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 452 (1982); see also Amar v. LSREF 2 APEX 2, LLC, No. 12cv969-JCM(RJJ), 2013 WL 1269637, at * 1 (D. Nev. Mar. 25, 2013). Therefore, Defendant's motion for reconsideration cannot be brought pursuant to Rule 59(e).

Defendant also brings a motion to reconsider under Rule 60(b). It appears Defendant is bringing the motion for reconsideration pursuant to Rule 60(b)(2); (4); (5) and (6) as it quotes these provision of Rule 60(b). (See Dkt. No. 84 at 4.)

Under Rule 60(b),
the court may relieve a party... from a final judgment, order, or proceeding for the following reasons:
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (4) the judgment is void; (5)... it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

Rule 60(d) provides,
This rule does not limit a court's power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 U.S.C. ยง 1655 to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the court.

Fed. R. Civ. P. 60(d).

The Court has discretion in granting or denying a motion for reconsideration. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir. 1991). A motion for reconsideration should not be granted absent highly unusual circumstances. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). "A motion for reconsideration cannot be used to ask the Court to rethink what the Court has already thought through merely because a party disagrees with the Court's decision. Collins v. D.R. ...


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