Denicolo v. Viking Client Services, Inc. ( 2020 )

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 RONALD G. DENICOLO, ET AL., CASE NO. 19-cv-00210-YGR 6 Plaintiffs, ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 7 vs. Dkt. No. 142 8 VIKING SERVICES., 9 Defendants. 10 Defendant Viking Client Services, LLC has filed a Motion for Leave to File a Motion for 11 Reconsideration, pursuant to Civil Local Rule 7-9(b)(3). (Dkt. No. 142). Viking seeks 12 reconsideration of the Court’s September 30, 2020 Order Denying Viking’s Motion for Summary 13 Judgment. (Dkt. No. 137 [“Order Denying Viking’s MSJ”].) Having considered the papers 14 submitted, the Court DENIES the Motion for Leave to File a Motion for Reconsideration. 15 Under Rule 54(b), “[r]econsideration is appropriate if the district court (1) is presented 16 with newly discovered evidence, (2) committed clear error or the initial decision was manifestly 17 unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, 18 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Local Rule 7-9(b) requires that a party seeking leave to 19 file a motion for reconsideration show reasonable diligence in making the motion and one of the 20 following: (1) That at the time of the motion for leave, a material difference in fact 21 or law exists from that which was presented to the Court before entry of the 22 interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for 23 reconsideration did not know such fact or law at the time of the interlocutory order; or 24 (2) The emergence of new material facts or a change of law occurring after the time of such order; or 25 (3) A manifest failure by the Court to consider material facts or 26 dispositive legal arguments which were presented to the Court before such interlocutory order. 27 Pursuant to Local Rule 7-9(c), “[n]o motion for leave to file a motion for reconsideration may 1 repeat any oral or written argument made by the applying party in support of or in opposition to 2 the interlocutory order which the party now seeks to have reconsidered.” Reconsideration of a 3 prior ruling is an “extraordinary remedy, to be used sparingly.” Kona Enter., Inc. v. Estate of 4 Bishop, 229 F.3d 877, 890 (9th Cir.2000). 5 Viking argues that reconsideration should be granted on the grounds that “the Court did 6 not consider material facts that were presented to the Court before the Order.” (Dkt. No. 142 at 2.) 7 More specifically, Viking argues that the Court did not consider that plaintiff received 8 reimbursement for the cost of renting the vehicle from his employer, which Viking contends 9 would establish that the debt for the alleged rental car damage was one incurred primarily for 10 business purposes under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692a(5). 11 In its proposed motion for reconsideration, Viking argues that the Court’s decision relied on the 12 facts that plaintiff booked the rental himself and did not use a company credit card, facts that 13 neither party had cited in their briefing. Viking argues: 14 The parties did not address these issues because the car rental was reimbursed as a business expense. Had the Court considered this important and material fact, 15 there would have remained no facts whatsoever showing that plaintiff’s purpose for renting the vehicle could have been personal. . . . 16 17 (Dkt. No. 142-1 at 2.) 18 First, Viking did not offer evidence of what it now characterizes as an “important and 19 material fact”—employer reimbursement—in its motion for summary judgment.1 In the Order 20 Denying Summary Judgment, the Court cited to pages 32-33 and 36 of the DeNicolo deposition 21 on the issue of the competing, contradictory facts creating a triable issue under Slenk v. 22 Transworld Sys. Inc., 236 F.3d 1072 (9th Cir. 2001). (See Order Denying Viking MSJ at 8-9.) On 23 reconsideration, for the first time, Viking seeks to submit pages 37-42 of the DeNicolo 24 deposition—evidence in its possession but not proffered previously in connection with its motion 25 for summary judgment briefing. Likewise, Viking did not assert employer reimbursement as 26 27 1 Indeed, as the Court pointed out in the Order Denying Viking’s MSJ, Viking failed to 1 material fact in its separate statement and did not argue in its briefing that reimbursement of the 2 || rental fee by the employer would establish that money owed for damage to the rental car was a 3 business expense. (See Dkt. No. 105 [motion brief], 105-1 [separate statement]; Dkt. No. 105-7 4 [excerpts of DeNicolo Depo, pp. 1-4, 21-36, 45-56, 69-92]; Dkt. No. 116 [reply brief]; Dkt. No. 5 116-3 [reply separate statement].) Thus, Viking fails to establish “[a] manifest failure by the 6 || Court to consider material facts or dispositive legal arguments which were presented to the Court 7 before such interlocutory order.” 8 Second, even if the Court were to find it appropriate to consider evidence Viking failed to 9 || present in support of its motion, despite its ability to do so, Viking does not offer any authority 10 suggesting that an employer’s reimbursement of the rental expense would be a dispositive factor 11 for determining whether a debt for the cost of damage to that car would be a personal or 12 commercial debt under the FDCPA. See Slenk, 236 F.3d at 1074 (courts must “examine the 13 transaction as a whole, paying particular attention to the purpose for which the credit was extended 14 || in order to determine whether [the] transaction was primarily consumer or commercial in nature,” 3 15 neither creditor’s motivations nor manner in which the obligation is documented have dispositive 16 || weight).? In other words, even if Viking had presented the evidence it previously omitted, it has 2 17 not shown the evidence would change the result on the merits of the summary judgment motion. 18 In short, Viking has failed to establish grounds for reconsidering the Court’s Order 19 Denying Viking’s Summary Judgment Motion. The Motion for Leave to File a Motion for 20 || Reconsideration is DENIED. 21 This terminates Docket No. 142. 22 IT Is SO ORDERED. 23 Dated: October 27, 2020 4 bbe 24 YVONN ONZALEZ RO S UNITED STATES DISTRICT COURT JUDGE 25 26 07 2 Viking’s argument also assumes that if an employer reimbursed the rental cost as □ business expense, it would also have reimbursed the cost of repairing any damage plaintiff might 28 viking to the rental car, a premise not supported by any evidence or authority offered by