United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION RECONSIDERATION (ECF NO. 155)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
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. ECF Nos. 162, 166, 178.
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).
moves for reconsideration under Federal Rule of Civil
Procedure (“Rule”) 54(b). 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
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).
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.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.
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.
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.
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 ...