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Forte v. Schwartz

United States District Court, E.D. California

February 23, 2018

EUGENE FORTE, Plaintiff,



         On January 31, 2018, Plaintiff Eugene Forte filed a motion to amend his First Amended Complaint (“FAC”) to add a claim for First Amendment retaliation. ECF No. 148. The Court denied Plaintiff's motion on February 2, 2018. ECF No. 150. On February 12, 2018, Plaintiff filed the instant motion for reconsideration of the Court's February 2, 2018, order. ECF No. 155. Defendant filed an opposition on February 20, 2018. ECF No. 165. Plaintiff requested and was granted leave to reply, which he filed on February 22, 2018.[1] ECF Nos. 162, 166, 178.

         A court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Motions for reconsideration are disfavored, and are not venues for parties to make new arguments not made in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Reconsideration is also not an opportunity to ask a court to rethink its earlier ruling. See United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998).

         Plaintiff moves for reconsideration under Federal Rule of Civil Procedure (“Rule”) 54(b).[2] Rule 54(b) provides, in pertinent part, that

“any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”

         To succeed in a motion for reconsideration, a party must set forth facts or law of a strongly convincing nature to induce the Court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied 486 U.S. 1015 (1988). In general, “reconsideration is appropriate where there has been an intervening change in controlling law, new evidence has become available, or it is necessary to correct clear error or prevent manifest injustice.” Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 649 F.Supp.2d 1063, 1069 (E.D. Cal. 2009). A party seeking reconsideration must show “more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.” United States v. Westlands Water Dist, 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). The Local Rules for the Eastern District of California additionally provide that, when a motion for reconsideration is made, the party seeking reconsideration must set forth:

(1) when and the what Judge or Magistrate Judge the prior motion was made;
(2) what ruling, decision, or order was made thereon;
(3) 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
(4) why the facts or circumstances were not shown at the time of the prior motion. Local Rule 230(j).

         Defendant argues that Plaintiff has not presented any new fact or law, and only reargues his prior motion, and that Plaintiff's motion for reconsideration should therefore be denied. ECF No. 164.[3]Defendant also states that he had viewed the case as a straightforward Fourth Amendment claim, and that Plaintiff's proposed amendments change both procedural and substantive issues regarding evidence at trial and defenses. Id.

         Plaintiff argues in his motion for reconsideration that the Court erred by ruling on the motion to amend without a written opposition from Defendant and thereby advocated for Defendant. ECF No. 155 at 4-5. The Court has no obligation to wait for all parties to file formal statements of opposition or non-opposition before ruling on an issue. In his motion to amend, Plaintiff represented that he had conferred with Defendant Timothy Schwartz's counsel regarding the proposed amendment, and that Defendant opposed the motion. ECF No. 148 at 2. This is certainly sufficient notice to the Court that Plaintiff's proposed amendment did not have the written consent required by Rule 15(a)(2). Similarly, when deciding an issue, the Court is not restricted to the arguments made by either party but is bound to render its decision in accordance with the law, regardless of whether any party has or has not made a specific argument or cited to a specific authority.

         Plaintiff also argues that the Court relied on false facts in denying his motion to amend. Specifically, Plaintiff contends that his First Amendment claim was not screened out of his FAC. ECF No. 155 at 9. To reach this conclusion, Plaintiff misconstrues the screening order in this case. Plaintiff quotes the following language from the screening order in his motion for reconsideration: “Counts one and two, alleging a § 1983 claim of the use of excessive force in the course of arrest in violation of the Fourth Amendment, state cognizable claims against Defendant Schwartz and should proceed.” ECF No. 155 at 10. The screening order clearly stated the claims which were cognizable and were allowed to proceed. Those claims did not include a First Amendment claim. As the Court noted, no claim for First Amendment retaliation appears in Plaintiff's FAC. ECF No. 150 at 2. There is no reference to the First Amendment in any of the claims which were allowed to proceed. None of the elements of any First Amendment claim are referenced in any claim allowed to proceed. Accordingly, to the extent Plaintiff attempted to plead any First Amendment claim in his FAC, such claim was not allowed to proceed.

         Plaintiff further argues that the Court inconsistently described the record in its order by stating at one point that Plaintiff's First Amendment claim was screened out of his FAC, and at another point that no First Amendment retaliation claim existed in the FAC. These statements are not mutually exclusive. Not all First Amendment claims involve retaliation. Plaintiff's FAC contains scant, vague mentions of the First Amendment, for example, in the jurisdictional section and in a footnote describing “political hyperbole.” See ECF No. 13 at 2, 12 n.2. Arguably, there is some indication in the FAC ...

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