United States District Court, S.D. California
ORDER DENYING DEFENDANT JOAN M. POLITTE'S MOTION
TO RECONSIDER ORDER (DKT. #172) PURSUANT TO FED. R. CIV. P.
54(B) (DOC. NO. 182)
ANTHONY J. BATTAGLIA, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Joan M. Politte's motion to
reconsider order (Dkt. #172) pursuant to Fed.R.Civ.P. 54(b).
(Doc. No. 174.) As will be explained in greater detail below,
the Court DENIES Joan M. Politte's
motion to reconsider.
action is brought by the United States to (1) reduce to
judgment certain outstanding federal tax assessments against
Defendant RAJMP; (2) collect RAJMP's federal tax
liabilities from property of Defendants the Estate of Robert
A. Politte and Joan M. Politte as RAJMP's past and/or
present alter egos; (3) adjudicate that POFACO is Robert A.
Politte and/or Joan M. Politte's nominee; and (4)
foreclose federal tax liens on several real properties at
issue. (Doc. No. 79 ¶ 1.) The United States alleges that
RAJMP has failed to pay federal employment taxes for 29
consecutive tax periods and has failed to pay federal
unemployment taxes since 1998. (Id. ¶ 69.)
about May 23 and May 24, 2007, the Internal Revenue Service
(“IRS”) recorded Notices of Federal Tax Lien
identifying Robert A. Politte and Joan M. Politte as alter
egos of RAJMP with respect to RAJMP's unpaid federal tax
liabilities. (Doc. No. 122 at 7.) Thereafter, the Polittes
sold two residential condominiums to which the tax liens
applied and, accordingly, the net proceeds of the sales were
paid to the IRS. (Id.) On October 4, 2007, the
Polittes filed a complaint with this Court against the United
States requesting a refund for the net proceeds of the sales
of the condominiums. (Id.) The United States did not
assert a claim or counterclaim in the Polittes' action.
(Doc. No. 115-1 at 9.) This Court held in favor of the United
States and determined that the Polittes were alter egos of
RAJMP. (Doc. No. 122 at 8.) The Polittes appealed this
Court's decision. (Doc. No. 119-1 at 6.) The Ninth
Circuit affirmed this Court's decision in full.
(Id.) The Supreme Court denied certiorari. (Doc. No.
125 at 29.)
March 15, 2017, the United States filed a complaint against
Defendants. (See generally Doc. No. 1.) Thereafter,
several joint motions to dismiss parties were filed and
granted. (Doc. Nos. 24, 50, 58, 61, 63, 64, 75.) On August 9,
2017, the United States filed an amended complaint against
Defendants. (See generally Doc. No. 79.) Mrs.
Politte filed an answer to the amended complaint on August
30, 2017. (Doc. No. 86.) RAJMP filed an answer to the amended
complaint on August 31, 2017. (Doc. No. 89.) Thereafter,
several motions for summary judgment were filed on February
28, 2018. (Doc. Nos. 115, 116, 119.) The Court denied
Defendants Mrs. Politte's and RAJMP's motions for
summary judgment and granted Plaintiff's partial motion
for summary judgment. (Doc. No. 142.) Defendants then filed
an ex parte motion for reconsideration. (Doc. No. 144.) The
Court granted in part and denied in part Defendants'
motion for reconsideration and issued an amended order
denying Defendants' motions for summary judgment and
granting Plaintiff's motion for partial summary judgment.
(Doc. Nos. 145, 146.) The Court then denied Mrs.
Politte's motion to certify the order denying Mrs.
Politte's motion for summary judgment for interlocutory
review. (Doc. No. 172.) Now Mrs. Politte has filed the
instant motion to reconsider the order denying Mrs.
Politte's motion to certify the order for interlocutory
appeal. (Doc. No. 174.)
courts have the inherent authority to entertain motions for
reconsideration of interlocutory orders. Amarel v.
Connell, 102 F.3d 1494, 1515 (9th Cir. 1996)
(“[I]nterlocutory orders ... are subject to
modification by the district judge at any time prior to final
judgment.”); see also Fed. R. Civ. P. 54(b);
Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 465
(9th Cir. 1989). Absent highly unusual circumstances,
“[r]econsideration is appropriate if the district court
(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Sch. Dist. No. 1J, Multnomah
Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993); see also Beal v. Royal Oak Bar, No.
13-cv-04911-LB, 2016 WL 3230887, at * 1-2 (N.D. Cal. June 13,
2016); In re: Incretin Mimetics Prods. Liab. Litig.,
No. 13md2452 AJB (MDD), 2014 WL 12539702, at *1 (S.D. Cal.
Dec. 9, 2014); Verinata Health, Inc. v. Sequenom,
Inc., No. C 12-00865 SI, 2014 WL 4076319, at *2 (N.D.
Cal. Aug. 18, 2014); Hydranautics v. FilmTec Corp.,
306 F.Supp.2d 958, 968 (S.D. Cal. 2003).
a motion for reconsideration is an “extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Such a
motion 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. Sch. Dist. No. 1J,
Multnomah Cnty., 5 F.3d at 1263. It does not give
parties a “second bite at the apple.” See
id.; see also Weeks v. Bayer, 246 F.3d 1231,
1236-37 (9th Cir. 2001). “[A]fter thoughts” or
“shifting of ground” do not constitute an
appropriate basis for reconsideration. Ausmus v.
Lexington Ins. Co., No. 08-CV-2342-L, 2009 WL 2058549,
at *2 (S.D. Cal. July 15, 2009).
addition, Local Civil Rule 7.1(i)(1) states that a party may
apply for reconsideration “[w]henever any motion or any
application or petition for any order or other relief has
been made to any judge and has been refused in whole or in
part . . . .” S.D. Cal. CivLR 7.1. The party seeking
reconsideration must show “what new or different facts
and circumstances are claimed to exist which did not exist,
or were not shown, upon such prior application.”
Mrs. Politte argues that the Court committed clear error in
denying the motion to certify as it will cause Mrs. Politte
to incur litigation expenses that would be avoided if the
Ninth Circuit Court of Appeals would rule on the issues
presented in her motion for summary judgment. (Doc. No. 174
at 4.) Mrs. Politte previously mentioned this argument in her
reply to the motion to certify the order for interlocutory
appeal. (Doc. No. 154 at 8.) In her motion to reconsider,
Mrs. Politte bases this argument on Federal Rule of Civil
Procedure 1. Specifically, Mrs. Politte argues that the
determination of every action and proceeding should be just,
speedy and inexpensive. (Doc. No. 174 at 4.) This argument
could have reasonably been raised earlier in the litigation.
Mrs. Politte simply may not utilize her motion for
reconsideration as a “second bite at the apple.”
See Sch. Dist. No. 1J, Multnomah Cnty., 5 F.3d at
1263. However, considering the merits of the argument, Mrs.
Politte offers no case law for her position that the costs
she will incur is a reason to certify this Court's Order
denying her motion for summary judgment. As the Court has
previously outlined in its Order denying the motion to
certify an order for interlocutory appeal, the Court must
find that “such order involves a controlling question
of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of
litigation.” 28 U.S.C. § 1292(b); In re Cement
Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 2002).
While the Court appreciates the cost of litigation, the
expenses Mrs. Politte may incur is not a persuasive factor to
certify an order for interlocutory appeal.
Mrs. Politte reiterates her same argument stating Federal
Rule Civil Procedure Rule 13(a) is a separate and distinct
issue from other claims and defenses raised in this
litigation. Whether or not that is true, that argument does
not change the Court's finding that immediate appeal
would not materially advance the litigation's end nor is
there substantial ground for difference of opinion on the
question of whether the Government's claims were
compulsory counterclaims in the previous litigation.
Mrs. Politte advances the same argument she has now presented
in her motion for summary judgment, her motion for
reconsideration of the order denying her summary judgment
motion, and her motion to certify the order for interlocutory
appeal. For the fourth time, the Court finds Mrs.
Politte's case law unpersuasive and finds again that
there is not substantial ground for a difference of opinion
on the question of whether the Government's claims
against Mrs. Politte were compulsory counterclaims. Mrs.
Politte asserts that the Court did not consider
Aronson in its order denying to certify the order
for interlocutory appeal, that Aronson establishes a
circuit split, and thus, a difference of opinion exists among
jurists. (Doc. No. 174 at 8.) While the Court did not address
Aronson in its Order denying to certify the order
for interlocutory appeal, this case does not prove there is a
circuit split or a difference of opinion. See U.S. v.
Aronson, 617 F.2d 119, 121 (5th Cir. 1980). Furthermore,
the Fifth Circuit Court of Appeals directly stated that it
was not necessary for them to decide whether Congress
intended that Rule 13(a) apply to claims by the Government
for taxes. Id. Further, the Fifth Circuit reversed
the district court's holding that the Government's
claim should have been asserted as a counterclaim in the
refund suit. I ...