McBroom v. Ethicon Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 No. CV-20-02127-PHX-DGC 9 Amanda McBroom, 10 Plaintiff, ORDER 11 v. 12 Ethicon, Inc.; and Johnsons & Johnson, 13 Defendants. 14 15 On January 15, 2021, the Court denied Defendants’ motion for leave to file a 16 supplemental motion for summary judgment. Docs. 64, 76 at 3. Defendants have filed a 17 motion for reconsideration of that ruling. Doc. 84. The Court will deny the motion.1 18 A. Reconsideration Standard. 19 Motions for reconsideration are disfavored and rarely granted. See Nw. Acceptance 20 Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988); Resolution Tr. Corp. 21 v. Aetna Cas. & Sur. Co., 873 F. Supp. 1386, 1393 (D. Ariz. 1994). A motion for 22 reconsideration will be denied absent a showing of manifest error or a showing of new facts 23 or legal authority that could not have been brought to the Court’s attention earlier with 24 25 1 Plaintiff has filed a response to the motion. Doc. 85. Rule 7.2 of the Court’s Local Rules of Civil Procedure provides that “[n]o response to a motion for reconsideration . . . 26 may be filed unless ordered by the Court[.]” LRCiv 7.2(g)(2). The Court did not order Plaintiff to file a response. Plaintiff’s counsel are advised that they must become familiar 27 with, and follow, the Court’s Local Rules. See Leffers v. Amazon, Inc., No. CV-20-00974- PHX-DGC, 2020 WL 8834780, at *1 (D. Ariz. June 10, 2020) (explaining that even pro se 28 litigants must follow the Local Rules) (citations omitted). The Local Rules are available in the Clerk of Court’s office and online at http://www. azd.uscourts.gov/local-rules. 1 reasonable diligence. LRCiv 7.2(g)(1); see United Nat’l Ins. Co. v. Spectrum Worldwide, 2 Inc., 555 F.3d 772, 780 (9th Cir. 2009). The motion may not repeat previously made 3 arguments. See id.; Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 4 582 (D. Ariz. 2003) (reconsideration cannot “be used to ask the Court to rethink what it 5 has already thought through”). Mere disagreement with an order is an insufficient basis 6 for reconsideration. Ross v. Arpaio, No. CV 05-4177-PHX-MHM, 2008 WL 1776502, 7 at *2 (D. Ariz. 2008). 8 B. Defendants’ Motion for Reconsideration. 9 Defendants moved for leave to file a supplemental summary judgment motion 10 months after the deadline for filing summary judgment motions had passed. See Docs. 64, 11 76 at 3. The Court denied the motion because Defendants provided no justification for 12 their failure to assert their new summary judgment arguments by the MDL court’s deadline, 13 and did not otherwise show “good cause” to extend the deadline. Id. (citing Fed. R. Civ. 14 P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992)). 15 Defendants cite a recent case from the Western District of Kentucky, Garvin v. 16 Ethicon, Inc., 3:20-cv-00714-BJB-CHL (W.D. Ky. Mar. 9, 2021), for the proposition that 17 “Rule 16(b)’s good cause standard can be satisfied by judicial efficiency[.]” Doc. 84 at 4. 18 But Rule 16(b)’s good cause standard “primarily considers the diligence of the party” 19 seeking to extend the deadline. Johnson, 975 F.2d at 609. The Ninth Circuit has made 20 clear that a district court may extend a Rule 16 deadline only where “it cannot reasonably 21 be met despite the diligence of the party seeking the extension.” Id. (quoting Fed. R. Civ. 22 P. 16 advisory committee’s notes (1983 amendment)). “If that party was not diligent, the 23 inquiry should end.” Id.; see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 24 2002) (same). Defendants cite no Ninth Circuit authority holding that judicial efficiency 25 satisfies Rule 16(b)’s good cause requirement, and have not otherwise shown “manifest 26 error.” See LRCiv 7.2(g)(1). 27 What is more, Defendants are merely restating a previous argument. See Doc. 64 28 at 8-11 (arguing that their motion should be granted because the proposed supplemental || summary judgment motion would promote judicial efficiency). The Court rejected this || argument in denying Defendants’ motion. See Doc. 76 at 3. Defendants “improperly || attempt[] to take a ‘second bite’ at issues already decided against [them].” Am. States Ins. v. Ins. Co. of Penn., 245 F. Supp. 3d 1224, 1226 (E.D. Cal. 2017); see Clarke v. Upton, 5|| 2012 WL 6691914 at *1 (E.D. Cal. Dec. 21, 2012) (“Reconsideration is ‘not to be used to 6 || ask the court to rethink what it has already thought through — rightly or wrongly.’’) (citation omitted); Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 649 8 || F. Supp. 2d 1063, 1069-70 (E.D. Cal. 2009) (“Motions to reconsider are .. . not vehicles permitting the unsuccessful party to ‘rehash’ arguments previously presented.”’). 10 IT IS ORDERED that Defendants’ motion for reconsideration (Doc. 84) is denied. 11 Dated this 15th day of March, 2021. 12 13 2 pen 6 Cater phitl 14 David G. Campbell 15 Senior United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-