United States District Court, S.D. California
ROSA ALVAREZ, individually and on behalf of herself and all others similarly situated, Plaintiff,
NBTY, INC., et al., Defendants.
ORDER: (1) GRANTING DEFENDANTS' MOTION TO STRIKE;
AND (2) DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
[ECF No. 102, 103]
Cynthia Bashant, United States District Judge
Rosa Alvarez brings a complaint against Defendants NBTY, Inc.
and Nature's Bounty, Inc. Defendants manufacture, market,
sell, and distribute biotin supplements under the
Nature's Bounty brand. Plaintiff alleges Defendants have
violated California's unfair competition law
(“UCL”); and Consumers Legal Remedies Act
(“CLRA”) through the labeling of their biotin
22, 2019, the Court denied Defendants' motion for summary
judgment and also denied Plaintiff's motion for class
certification. (ECF Nos. 96, 97.) In making these
determinations, the Court analyzed, among other things, the
report and deposition of Plaintiff's expert, Dr. Barry
Wolf. Plaintiff now moves for reconsideration of the
Court's order denying class certification. (“Mot.,
” ECF No. 102.) As an attachment to her Motion,
Plaintiff included a new declaration by her expert Dr. Wolf.
Defendants move to strike that declaration. (ECF No. 103.)
Both motions are opposed. The Court finds these Motions
suitable for determination on the papers submitted and
without oral argument. See Civ. L.R. 7.1(d)(1). For
the reasons stated below, this Court GRANTS
Defendants' Motion to Strike and DENIES
Plaintiff's Motion for Reconsideration.
Court incorporates the background sections from prior orders
and does not repeat the background facts of this case here.
(See ECF Nos. 96, 97.)
STANDARD FOR MOTION FOR RECONSIDERATION
Rule 59(e) permits a district court to reconsider and amend a
previous order, the rule offers 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 877, 890 (9th
Cir.2000) (internal quotation marks omitted).
“Reconsideration 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 Cty.
v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
However, 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. It does not give parties a
“second bite at the apple.” See Id.
“[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,
TO STRIKE DR. WOLF'S DECLARATION
included the new declaration by Dr. Wolf because she believes
“it is clear that the Court misunderstood Dr.
Wolf's point about the body's recycling of
biotin.” (ECF No. 102-2, at ¶ 5.) In the
declaration, Dr. Wolf opines he “thought he was clear
about the redundancy that recycling plays, ” and
“apologize[s] to the extent that the Court did not
understand this.” (ECF No. 102-3, ¶ 2.) He then
provides his opinion regarding biotin recycling. Plaintiff
acknowledges that Dr. Wolf prepared the new declaration so
that he could “clarify existing opinions” and
“correct the Court's misapprehension of what he
said and explain how the Court erred in denying class
certification.” (ECF No 104, at 3.)
improper to submit evidence as a part of a motion for
reconsideration that could have been provided earlier in the
litigation. Dr. Wolf is attempting to clarify and add to his
earlier opinion, but this clarification is not based on any
new evidence or newly discovered arguments. “A Rule
59(e) 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.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); see
also ThermoLife Int'l, LLC v. Myogenix Corp., No.
13-CV-651 JLS (MDD), 2017 WL 4792426, at *2 (S.D. Cal. Oct.
24, 2017) (striking evidence attached to a motion for
reconsideration that was filed to “[t]o rectify any
possible ambiguity” on an issue and to “complete
the declaration is improper, the Court
GRANTS the Motion and
STRIKES Dr. Wolf's Declaration, (ECF No.
102-3). The Court will not consider the declaration or the
portions of Plaintiff's Motion for Reconsideration that
rely on the declaration.
moves for reconsideration on the Court's order denying
class certification because she believes “the Order and
subsequent case law, including two recent Ninth Circuit
opinions, reveal that the Court should have granted class
certification.” (ECF No. 102-1, at 1.) Plaintiff
therefore moves for reconsideration on two grounds: clear
error, and newly discovered evidence.
reviewing Plaintiff's arguments, the Court finds no
evidence that it clearly erred in denying class
certification. The Court finds no clear error or manifest
injustice in its ruling. Next, Plaintiff points to cases
decided after the Court's class certification order,
arguing that the cases warrant reconsideration. First,
Plaintiff cites In re Hyundai and Kia Fuel Economy
Litigation, 926 F.3d 539 (9th Cir. 2019), noting that
the “Ninth Circuit recently reiterated . . . that class
certification is not defeated by the inclusion of Class
members with differing damages.” (Mot. at 4.) By
calling the case a “reiteration” of prior law,
Plaintiff is admitting that In re Hyundai is not an
“intervening change in controlling law.” See
Sch. Dist. No. 1J, 5 F.3d at 1263. It is therefore not a
basis for reconsideration. The same holds true for the other
opinion Plaintiff cites, Yamagata v. Reckitt Benckiser
LLC, No. 17-cv-03529, 2019 WL 3815718 (N.D. Cal. June 5,
2019) which was issued by Judge Chhabria in the Northern
District of California. This opinion issued by a district
court is not controlling and also not a basis for
has not presented any basis for the Court to reconsider its
prior order, and the Court DENIES ...