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Paskenta Band of Nomlaki Indians v. Crosby

United States District Court, E.D. California

May 10, 2017

INES CROSBY; et al., Defendants.



         Before the Court is Plaintiffs' Motion for Reconsideration, ECF No. 366, in which they seek to obtain a preliminary injunction that the Court previously declined to issue. For the reasons that follow, the motion is DENIED.


         On June 29, 2015, Plaintiffs Paskenta Band of Nomlaki Indians and Paskenta Enterprises Corp. (collectively, the “Tribe”) moved for a preliminary injunction to freeze assets belonging to four Defendants: John Crosby, Ines Crosby, Leslie Lohse, and Larry Lohse (collectively, the “RICO Defendants”). ECF No. 72. The Court denied the motion, finding that Plaintiffs failed to provide sufficient evidence “that each individual is likely to dissipate assets or put them beyond the reach of the Court.” Mem. & Order, ECF No. 102, at 2-3. Plaintiffs appealed, and the Ninth Circuit vacated and remanded the order, directing this Court “to explain, on an individualized basis, why the evidence does or does not show a likelihood of dissipation” in order “to permit meaningful review” of the Court's decision. U.S.C.A. Mem., ECF No. 343, at 3-4. The Court subsequently set forth the findings of facts and conclusions of law that supported its decision to deny the asset freeze in a Memorandum and Order dated January 24, 2017. ECF No. 360. Plaintiffs' Motion for Reconsideration addresses the Memorandum and Order issued in response to the Ninth Circuit's opinion.


         It is a well-established maxim within our jurisprudence that a court should not revisit its own decisions unless extraordinary circumstances show that its prior decision was wrong. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). Reconsideration may be appropriate in one of three situations: (1) newly discovered evidence is presented; (2) the court has committed clear error or issued an initial decision that was manifestly unjust; or (3) intervening change in controlling law is presented. Turner v. Burlington N. Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003).

         A motion for reconsideration should not be used to raise arguments or present evidence that could have reasonably been raised or presented earlier. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (citing Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). In order to succeed, a party making a motion for reconsideration must “set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Pritchen v. McEwen, No. 1:10-cv-02008-JLT HC, 2011 WL 2115647, at *1 (E.D. Cal. May 27, 2011) (citing Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656 (E.D. Cal. 1986) aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987)).

         Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, is not grounds for relief. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981); see also Sheets v. Terhune, No. 1:08-cv-1056-SRB, 2010 WL 1287078, at *1 (E.D. Cal. Mar. 30, 2010) (“Such motions should not be used for the purpose of asking a court ‘to rethink what the court had already thought through-rightly or wrongly.'” (citation omitted)). Motions for reconsideration are therefore not intended to “give an unhappy litigant one additional chance to sway the judge.” Kilgore v. Colvin, No. 2:12-cv-1792-CKD, 2013 WL 5425313, at *1 (E.D. Cal. Sept. 27, 2013) (quoting Frito-Lay of P.R., Inc. v. Canas, 92 F.R.D. 384, 390 (D.P.R. 1981)). Local Rule 230(j) similarly requires a party seeking reconsideration to demonstrate “what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion, ” and “why the facts or circumstances were not shown at the time of the prior motion.”


         To justify an injunction, a plaintiff “must establish that irreparable harm is likely, not just possible.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “Typically, monetary harm alone does not constitute irreparable harm . . . . Therefore, a party seeking an asset freeze has the additional burden of showing ‘a likelihood of dissipation of the claimed assets, or other inability to recover monetary damages, if relief is not granted.'” Fid. Nat'l Title Ins. Co. v. Castle, No. C-11-00896-SI, 2011 WL 5882878, at *5-6 (N.D. Cal. Nov. 23, 2011) (citation omitted). “Courts have construed this standard narrowly, only exercising their . . . authority . . . where there is considerable evidence of likely dissipation.” Allstate Ins. Co. v. Baglioni, No. CV-11-06704-DDP-VBKX, 2011 WL 5402487, at *2 (C.D. Cal. Nov. 8, 2011).

         In its prior order denying a preliminary injunction that would freeze the RICO Defendants' assets, the Court found that the evidence put forth by Plaintiffs did not warrant the relief sought. Plaintiffs contend both that new evidence supports reconsideration and that the Court committed clear error in the prior order. See Mot. to Recons., at 11. The Court addresses each in turn.

         A. New Evidence

         Plaintiffs claim new evidence demonstrates the following: (1) that Defendant Leslie Lohse requested and received a public defender in the parallel criminal case; (2) that the RICO Defendants refused “to provide any information or documents from which it could be determined how much of the money stolen from the Tribe still exists, as well as where it exists and in what form”; (3) that the RICO Defendants lied and provided false documents to the FBI and IRS; (4) that the RICO Defendants filed false tax returns; and (5) that John Crosby attempted to sell a car. Mot. for Recons., at 12-17. Furthermore, Plaintiffs claim that this new evidence supports imposing an asset freeze on the RICO Defendants.

         Plaintiffs first argue that Leslie Lohse obtaining a public defender is “direct evidence” of the dissipation of assets because she and her husband claimed a total of $3, 726, 109 in income for the years 2010-2014. Id. at 12-13. To the contrary, this new evidence is mostly supposition, relying primarily on allegations contained in the indictment in the parallel criminal case. Furthermore, Plaintiffs provide no temporal context for these claims, lumping five years of reported income together, and do not provide any information about the relationship between Leslie Lohse's reported income and available assets. Leslie Lohse's income in 2014 does not indicate the amount of assets she had when this action was filed.[1] The Court finds this sparse ...

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