United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR
RECONSIDERATION OF ORDER ON MOTION FOR EXPEDITED DISCOVERY
AND PRELIMINARY INJUNCTION BRIEFING SCHEDULE [DOC. NO.
Michael M. Anello United States District Judge
pending before the Court is Plaintiff Arcturus Therapeutics
Ltd.'s (“Plaintiff”) ex parte motion
for reconsideration. Doc. Nos. 20-1 (“Mtn.”).
Defendant Payne opposes the motion. Doc. No. 22
(“Oppo.”). For the reasons set forth below, the
Court DENIES Plaintiff's ex
motion for reconsideration may be brought under Federal Rules
of Civil Procedure 59(e) or 60(b). A motion is treated as a
motion to alter or amend judgment under Rule 59(e) if it is
filed within twenty-eight days of entry of judgment or the
ruling; otherwise, it is treated as a Rule 60(b) motion for
relief from a judgment or order. Am. Ironworks &
Erectors, Inc. v. N. Am. Construction Corp., 248 F.3d
892, 898-99 (9th Cir. 2001)(a motion for reconsideration is
treated as a motion under Rule 59(e) if it is timely filed
under that rule and as a motion under 60(b) otherwise). Here,
the order referenced was filed on April 26, 2018, and
Plaintiff's motion was filed on May 3, 2018. See
Doc. No. 19; Mtn. Accordingly, Plaintiff's motion is
properly brought under Rule 59(e). See Am. Ironworks &
Erectors, Inc., 248 F.3d at 898-99.
to Federal Rule of Civil Procedure 59(e), district courts
have the power to reconsider a previous ruling or entry of
judgment. Fed.R.Civ.P. 59(e). A Rule 59(e) motion seeks
“a substantive change of mind by the court.”
Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir.
1988). Rule 59(e) provides an extraordinary remedy and, in
the interest of finality and conservation of judicial
resources, such a motion should not be granted absent highly
unusual circumstances. Carroll v. Nakatani, 342 F.3d
934, 945 (9th Cir. 2003); McDowell v. Calderon, 197
F.3d 1253, 1255 (9th Cir. 1999). Rule 59 may not be used to
re-litigate old matters, raise new arguments, or present
evidence that could have been raised prior to entry of the
judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008).
Rule 59(e), it is appropriate to alter or amend a previous
ruling or judgment if “(1) the district court is
presented with newly discovered evidence, (2) the district
court committed clear error or made an initial decision that
was manifestly unjust, or (3) there is an intervening change
in controlling law.” United Nat'l Ins. Co. v.
Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir.
2009) (citation omitted).
moves for reconsideration of the Court's April 26, 2018
order denying Plaintiff's request for a temporary
restraining order and setting a hearing date and briefing
schedule on Plaintiff's motion for preliminary injunction
and expedited discovery. See Mtn. Recon.
Specifically, Plaintiff asks the court to reconsider its
decision to set its motion for expedited discovery and
preliminary injunction for hearing on the same day.
Id. at 2. Plaintiff contends that it needs
“expedited discovery to more fully inform its motion
for preliminary injunction.” Id. In the present
motion, Plaintiff states it has “new facts” which
warrant reconsideration of the Court's previous order.
See Id. at 4.
Plaintiff contends expedited discovery is necessary for all
parties to prepare for the preliminary injunction hearing so
that it can fully inform its shareholders of the issues prior
to the Extraordinary General Meeting (“EGM”)
which could be held as early as June 13, 2018. Mtn. at 4-6.
Second, Plaintiff contends that Defendant Payne has
“wiped all data” from his company cell phone
before returning it to Plaintiff and, therefore, there is a
“risk of [Defendant] Payne's further spoliation of
evidence.” Id. at 6. Further, Plaintiff states
that it “recently learned that another former employee
, Neda Safarzadeh,  tampered with Arcturus property[, ]
removed shareholder contact information[, ]” and has
not returned this material to Plaintiff. Id. at 7.
Plaintiff also suspects that someone informed Defendant Payne
of an inquiry made by shareholder Ron Karp. Id.
Defendant Payne points out, Plaintiff's arguments fall
short because the evidence upon which it relies has been in
its possession since the start of litigation. See
Oppo. at 4; see also Coastal Transfer Co.v. Toyota Motor
Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987).
Evidence is not “newly discovered” under the
Federal Rules if it was in the moving party's possession
before the ruling or judgment was rendered. Id.;
Engelhard Indus., Inc. v. Research Instrumental
Corp., 324 F.2d 347, 352 (9th Cir. 1963), cert.
denied, 377 U.S. 923 (1964). Here, Plaintiff became
aware of Sefarzadeh's conduct on or around April 13, 2018
- eleven days before Plaintiff filed the underlying motion
for expedited discovery - and became aware of the incident
with shareholder Karp in “early April 2018.” Doc.
No. 20-4 (“Herbert Decl.”), ¶¶ 5-6, 14.
Finally, while Plaintiff did not know of the requested June
13, 2018 date for the upcoming EGM, Plaintiff was aware of an
EGM on the “immediate horizon.” See id.,
¶ 12; see also Doc. No. 10-1 at 11 n.2. The
Court notes that Plaintiff raised its two main arguments -
the risk of spoliation of evidence and the timing of the
upcoming EGM - in its original motion and that the Court
considered that information in setting the motion for
preliminary injunction and expedited discovery for hearing on
the same day, with the same briefing schedule. See
Doc. No. 10-1 at 26-29. The information raised by Plaintiff
in the instant motion for reconsideration does not alter the
Court also notes that it neither granted nor denied
Plaintiffs underlying motion to expedite discovery, but
merely set a briefing schedule and hearing for the matter.
Doc. No. 19. While Plaintiff stylizes its request as a motion
for reconsideration, Plaintiff is actually moving the Court
to issue a ruling on its motion for expedited discovery and
permit Plaintiff to supplement its motion for preliminary
injunction or re-file its motion. See Mtn. After
reviewing the instant motion, the motion for preliminary
injunction and to expedite discovery, and Defendant
Payne's opposition to the motion for reconsideration, the
Court declines to do so. The Court reminds Plaintiff that
reconsideration is an “extraordinary remedy, to be used
sparingly in the interests of finality and conservation of
judicial resources.” Kona Enterprises, Inc. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
reasons stated herein, the Court DENIES
Plaintiffs ex parte motion. Accordingly, all other
dates, guidelines, and requirements remain as previously set.
See Doc. No. 19.