United States District Court, E.D. California
PASKENTA BAND OF NOMLAKI INDIANS; and PASKENTA ENTERPRISES CORPORATION, Plaintiffs,
INES CROSBY; et al., Defendants.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, UNITED STATES DISTRICT JUDGE
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.
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
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).
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
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.”
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.
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.
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
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. The Court finds this sparse