Wagner v. Adickman ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary Wagner, et al., No. CV-19-03216-PHX-SMB 10 Plaintiffs, ORDER 11 v. 12 Derek Adickman, et al., 13 Defendants. 14 15 Pending before the Court is Defendants’ Rule 60(b)(6) Motion for Relief from an 16 Order (Doc. 99). Plaintiffs have filed a response (Doc. 102) and Defendants filed a reply 17 (Doc. 103). The Court has read and considered the pleadings and will deny the motion. 18 Defendants seek relief from this Court’s order granting, in part, Plaintiffs’ Motion to Strike 19 Adickman’s Answer and Counterclaim and to Enter Order in Favor of Defendants Due to 20 Adickman’s Willful Violation of this Court’s Orders. (Doc. 97). In that order, the Court 21 awarded sanctions in the form of attorney’s fees. (Id.) 22 Under Rule 60(b), a party may move for relief from judgment on the following 23 grounds: “(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 24 evidence that, with reasonable diligence, could not have been discovered in time to move 25 for a new trial under Rule 59(b); (3) fraud ... misrepresentation, or misconduct by an 26 opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or 27 discharged ... or (6) any other reason that justifies relief.” Rule 60(b), Fed.R.Civ.P. “A 28 motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), 1 and (3) no more than a year after the entry of the judgment or order or the date of the 2 proceeding.” Rule 60(c), Fed.R.Civ.P. The burden of establishing a ground for relief under 3 Rule 60(b) is on the party seeking that relief. See Cassidy v. Tenorio, 856 F.2d 1412, 1415 4 (9th Cir. 1988). A party seeking relief under Rule 60(b)(6) must show “extraordinary 5 circumstances” support that request. Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S. Ct. 6 2641, 2649, 162 L. Ed. 2d 480 (2005); Hall v. Haws, 861 F.3d 977, 987 (9th Cir. 2017). 7 Legal error by itself does no warrant relief under this rule and this rule cannot be used as a 8 substitute for appeal. King v. Ryan, No. CV-98-1277-PHX-RCB, 2009 WL 1904295, at 9 *3 (D. Ariz. July 1, 2009). 10 Here Defendants ask for relief from the Court’s interim order for sanctions based 11 on Defendants’ failure to participate in arbitration in good faith. However, while asking 12 for relief under Rule 60(b)(6), Defendants don’t argue why such relief is justified under 13 the Rule. Defendants do not allege any “extraordinary circumstances” or other recognized 14 grounds under Rule 60(b)(6) to support granting their request. Instead, their argument is 15 essentially simply that the Court erred in the original order. Allegations of legal error that 16 can be reviewed on appeal at the appropriate time, but “legal error by itself” is not grounds 17 for Rule 60(b) relief. King, 2009 WL 1904295, at *3. 18 The Court agrees with Plaintiffs that this motion is really a motion for 19 reconsideration. Motions for reconsideration are disfavored and should be granted only in 20 rare circumstances. Defs. of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). 21 A motion for reconsideration ordinarily will be denied “absent a showing of manifest error 22 or a showing of new facts or legal authority that could not have been brought to [the 23 Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). “Reconsideration 24 is appropriate if the district court (1) is presented with newly discovered evidence, (2) 25 committed clear error or the initial decision was manifestly unjust, or (3) if there is an 26 intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 27 5 F.3d 1255, 1263 (9th Cir. 1993). None of these factors is present in this case. While 28 Adickman tries to argue each item in a vacuum, the overall picture was clear. The parties || agreed to mediate and then arbitrate using the same professional, Mr. Aiken. After || mediation, Adickman tried to get out of using Mr. Aiken for the arbitration and did || everything he could to obstruct moving forward. Eventually, the arbitrator gave in and terminated the arbitration. 5 IT IS ORDERED denying Defendants’ Rule 60(b)(6) Motion for Relief from an 6|| Order (Doc. 99). 7 Dated this 28th day of January, 2021. 8 9 a . ~P 10 SO i Gnvted States District ude. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-