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Wert v. U.S. Bancorp

United States District Court, S.D. California

June 9, 2015

MONICA R. WERT, Individually and on Behalf of Other Members of the Public Similarly Situated, Plaintiff,
U.S. Bancorp, et al., Defendants.


CYNTHIA BASHANT, District Judge.

On December 18, 2014, the Court issued an order granting in part and denying in part Plaintiff Monica Wert's motion for leave to file a Second Amended Complaint ("December Order"). Plaintiff's request was mostly granted except for a nuanced application of specific language regarding the scope of relief available. Plaintiff now moves for reconsideration of the Court's December Order. Defendants U.S. Bancorp and U.S. Bank National Association oppose.

For the following reasons, the Court DENIES Plaintiff's motion for reconsideration, and DENIES AS MOOT Defendants' ex parte application to reinstate their motions to dismiss and strike.


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). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). However, 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. "[A]fter 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) (Lorenz, J.).

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).

District courts also have the inherent authority to entertain motions for reconsideration of interlocutory orders. Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996) ("[I]nterlocutory orders... are subject to modification by the district judge at any time prior to final judgment."); see also Fed.R.Civ.P. 54(b); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 465 (9th Cir. 1989). To determine the merits of a request to reconsider an interlocutory order, the court applies the standard required under a Rule 59(e) reconsideration motion. See Hydranautics v. FilmTec Corp., 306 F.Supp.2d 958, 968 (S.D. Cal. 2003) (Whelan, J.).


Plaintiff's request for reconsideration comprises mostly of arguments attempting to take a second bite at the apple. However, mere dissatisfaction with the Court's conclusion is not appropriate grounds for reconsideration, and as such, those arguments will not be considered. See ACandS, 5 F.3d at 1263. That said, the impact of Murphy v. Kenneth Cold Productions, Inc., 40 Cal.4th 1094 (2012), warrants further discussion.

In Murphy, the California Supreme Court addressed whether the "additional hour of pay" language provided for in § 226.7 constituted a wage or a penalty in the context of deciding what statute of limitations governed the plaintiff's claims. Murphy, 40 Cal.4th at 1102. A three-year statute of limitations applies to wages while a one-year statute of limitations governs claims for penalties.[1] Id. (citing Cal. Civ. Proc. Code §§ 338(a), 340(a)). After reviewing the statute's plain language, administrative and legislative history, and "compensatory purpose of the remedy, " the court concluded that the "additional hour of pay' is a premium wage intended to compensate employees, not a penalty." Id. (citation omitted).

Though the California Supreme Court did not explicitly include the "regular rate of compensation" language in its holding, it did note in a footnote that the California Legislature "has frequently used the words pay' or compensation' in the Labor Code for wages[, ]'" and that "[t]he same is true of the IWC wage orders." Murphy, 40 Cal.4th at 1104 n.6. Thus, to Plaintiff's credit, she is correct that the wage/penalty distinction is not one that is entirely relevant in interpreting the "regular rate" languages in §§ 226.7 and 510. As a consequence, this Court's reliance on the wagepenalty distinction was not supported the California Supreme Court's decision. Nonetheless, the outcome remains unchanged.

What Murphy did not say is that § 226.7's "regular rate of compensation" language is synonymous with § 510's "regular rate of pay" language for the purposes of relief calculation. Murphy 's conclusion is merely that the "additional hour of pay" language-and presumably, by extension, the "regular rate of compensation" language-is a wage, which is fully consistent with this Court's conclusion in the December Order. Just because all relief resulting from §§ 226.7 and 510 are wages does not necessarily or logically lead to the conclusion that the relief prescribed by §§ 226.7 and 510 are the same.

Though Plaintiff devotes most of her attention on the Court's reliance on Corder v. Houston's Restaurants, Inc., 424 F.Supp.2d 1205 (C.D. Cal. 2006), discounting Bradescu v. Hillstone Restaurant Group, Inc., No. SACV 13-1289, 2014 WL 5312546 (C.D. Cal. Sept. 18, 2014), this Court finds that Bradescu 's conclusion is just as applicable now as it was before. "[T]here is no authority supporting the view that regular rate of compensation, ' for purposes of meal period compensation, is to be interpreted the same way as regular rate of pay' is for purposes of overtime compensation." See Bradescu, 2014 WL 5312546, at *8. That lack of legal authority remains. In the absence of legal authority stating that the § 226.7's "regular rate of compensation" language is the same as the § 510's "regular rate of pay" language, this Court reiterates its previous determination that the ...

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