United States District Court, S.D. California
LARRY D. KERNS, Plaintiff,
MATHEW J. WENNER, Defendant.
William Q. Hayes United States District Court
matters before the Court are the motion to reconsider partial
summary judgment (ECF No. 149), the motion to dismiss (ECF
No. 154), the motion for exclusion of GCIU Employer
Retirement Fund's contract with ERISA (ECF No. 156), the
motion to allow Plaintiff to correct exhibits in motion to
reconsider partial summary judgment (ECF No. 158), and the
motion to remove document 165 from the docket (ECF No. 170).
September 28, 2016, Plaintiff Larry D. Kerns initiated this
action by filing the complaint against Defendants Mathew J.
Wenner, Hugh Gaylord, Edward Treacy, Thomas Sarnecki, George
Tedeschi, Charles Kamen and John D. Bachler. (ECF No. 1).
Plaintiff brings causes of action for mail fraud and
violation of the Americans with Disabilities Act
(“ADA”) and seeks $3, 000, 000 in punitive
damages. Plaintiff allegations relate to Plaintiff's
benefits under the GCIU-Employment Retirement Fund.
MOTION FOR RECONSIDERATION (ECF No. 149)
December 29, 2017, Plaintiff filed a motion to reconsider the
Court's ruling on a prior motion for summary judgment
filed by Plaintiff on the basis of new evidence. (ECF No.
149). Plaintiff contends that new evidence proves that he was
eligible for full retirement benefits and that Defendant knew
Plaintiff was eligible for full retirement benefits as of
July 8, 2010. Plaintiff contends that he has seen this
evidence many times but that he “simply did not or
could not; comprehend; the evidence (information) on the
previous pages; until a few weeks; ago. One of my;
Disability, Issues.” (ECF No. 149 at 8).
January 29, 2018, Defendant filed a response in opposition.
(ECF No. 165). Defendant contends that Plaintiff fails to
provide any new admissible evidence and fails to establish
that any new evidence was unavailable when the motion for
partial summary judgment was filed. Defendant contends that
both the motion for summary judgment and motion for
reconsideration fail to address ERISA. Defendant contends
that Plaintiff fails to state grounds upon which summary
judgment is warranted and fails to establish by admissible
evidence that the absence of any genuine dispute of material
fact. Defendant states that Plaintiff failed to file a
separate statement of undisputed fact in support of his
motion for summary judgment and fails to remedy this
deficiency in his motion for reconsideration. Defendant files
evidentiary objections to the evidence cited by Plaintiff in
his motion for reconsideration on the following grounds: lack
of foundation; lack of authentication; lack of personal
knowledge; hearsay; irrelevance; and ambiguous, confusing,
and misleading evidence. (ECF No. 166).
is 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 887, 890 (9th Cir. 2000). “[A]
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (quoting 389 Orange St. Partners v. Arnold,
179 F.3d 656, 665 (9th Cir. 1999) (internal quotation marks
omitted)). “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. at
880 (quoting Kona, 229 F.3d at 890). “Whether
or not to grant reconsideration is committed to the sound
discretion of the court.” Navajo Nation v.
Confederated Tribes & Bands of the Yakama Indian
Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). Civil Local
Rule 7.1(i) provides that when a party moves the Court for
reconsideration of a prior order, the party must identify
“what new or different facts and circumstances are
claimed to exist which did not exist, or were not shown, upon
such prior application.” CivLR 7.1(i).
November 20, 2017, the Court denied Plaintiff's motion
for summary judgment on the grounds that Plaintiff failed to
satisfy his burden to demonstrate that summary judgment was
appropriate with respect to either the ADA claim or the mail
fraud claim. (ECF No. 145). In this motion for
reconsideration, Plaintiff seeks reconsideration of this
Order based upon new evidence but concedes that he has seen
this purported new evidence “many times.”
Accordingly, Plaintiff does not establish that the documents
are newly-discovered evidence and fails to establish adequate
grounds for reconsideration.
evidence provided by a party in support of a motion for
summary judgment must be admissible. See Fed. R.
Civ. P. 56; Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007) (“The evidence presented
by the parties must be admissible.”). The Ninth Circuit
Court of Appeals “has repeatedly held that
unauthenticated documents cannot be considered on a motion
for summary judgment.” Orr v. Bank of Am., NT &
SA, 285 F.3d 764, 773 (9th Cir. 2002). In this case,
Plaintiff has failed to properly authenticate his purported
new evidence. (ECF No. 149 at 3-6). Thus, the Court would be
unable to consider this evidence in support of any motion for
has failed to establish that any reconsideration of the
Court's prior order denying his motion for partial
summary judgment is warranted. The motion for reconsideration
is denied. (ECF No. 149).
MOTION TO DISMISS (ECF No. 154)
January 10, 2018, Plaintiff filed a motion stating, “IF
PLAINTIFF KERNS': MOTION FOR PARTIAL SUMMERY JUDGEMENT;
IS GRANTED; WITH AN AWARD OF AT LEAST 2 MILLION DOLLARS; BUT
LESS THEN 3 MILLION DOLLARS: PLAINTIFF; LARRY D. KERNS,
HEREBY ENTERS A MOTION TO DISMISS; ALL REMAINING ISSUES:
WITHOUT PREJUDICE: DUE TO PLAINTIFF AND
PLAINTIFF'S; WIFE'S; HEALTH ISSUES.”
(ECF No. 154).
Court denied Plaintiff's motion for partial summary
judgment and Plaintiff's subsequent motion for
reconsideration. The motion ...