Alvarez v. NBTY, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ROSA ALVAREZ, individually and Case No. 17-cv-00567-BAS-BGS 11 on behalf of herself and all others similarly situated, ORDER: 12 (1) GRANTING Plaintiff, DEFENDANTS’ MOTION 13 TO STRIKE; v. AND 14 (2) DENYING PLAINTIFF’S NBTY, INC., et al., MOTION FOR 15 RECONSIDERATION Defendants. 16 [ECF No. 102, 103] 17 18 Plaintiff Rosa Alvarez brings a complaint against Defendants NBTY, Inc. and 19 Nature’s Bounty, Inc. Defendants manufacture, market, sell, and distribute biotin 20 supplements under the Nature’s Bounty brand. Plaintiff alleges Defendants have 21 violated California’s unfair competition law (“UCL”); and Consumers Legal 22 Remedies Act (“CLRA”) through the labeling of their biotin products. 23 On May 22, 2019, the Court denied Defendants’ motion for summary judgment 24 and also denied Plaintiff’s motion for class certification. (ECF Nos. 96, 97.) In 25 making these determinations, the Court analyzed, among other things, the report and 26 deposition of Plaintiff’s expert, Dr. Barry Wolf. Plaintiff now moves for 27 reconsideration of the Court’s order denying class certification. (“Mot.,” ECF No. 1 expert Dr. Wolf. Defendants move to strike that declaration. (ECF No. 103.) Both 2 motions are opposed. The Court finds these Motions suitable for determination on 3 the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the 4 reasons stated below, this Court GRANTS Defendants’ Motion to Strike and 5 DENIES Plaintiff’s Motion for Reconsideration. 6 The Court incorporates the background sections from prior orders and does not 7 repeat the background facts of this case here. (See ECF Nos. 96, 97.) 8 LEGAL STANDARD FOR MOTION FOR RECONSIDERATION 9 Although Rule 59(e) permits a district court to reconsider and amend a 10 previous order, the rule offers an extraordinary remedy, to be used sparingly in the 11 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. 12 Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000) (internal quotation marks 13 omitted). “Reconsideration is appropriate if the district court (1) is presented with 14 newly discovered evidence, (2) committed clear error or the initial decision was 15 manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. 16 Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 17 However, a motion for reconsideration may not be used to raise arguments or present 18 evidence for the first time when they could reasonably have been raised earlier in the 19 litigation. Id. It does not give parties a “second bite at the apple.” See id. “[A]fter 20 thoughts” or “shifting of ground” do not constitute an appropriate basis for 21 reconsideration. Ausmus v. Lexington Ins. Co., No. 08–CV–2342–L, 2009 WL 22 2058549, at *2 (S.D. Cal. July 15, 2009). 23 MOTION TO STRIKE DR. WOLF’S DECLARATION 24 Plaintiff included the new declaration by Dr. Wolf because she believes “it is 25 clear that the Court misunderstood Dr. Wolf’s point about the body’s recycling of 26 biotin.” (ECF No. 102-2, at ¶ 5.) In the declaration, Dr. Wolf opines he “thought he 27 was clear about the redundancy that recycling plays,” and “apologize[s] to the extent 1 opinion regarding biotin recycling. Plaintiff acknowledges that Dr. Wolf prepared 2 the new declaration so that he could “clarify[] existing opinions” and “correct the 3 Court’s misapprehension of what he said and explain how the Court erred in denying 4 class certification.” (ECF No 104, at 3.) 5 It is improper to submit evidence as a part of a motion for reconsideration that 6 could have been provided earlier in the litigation. Dr. Wolf is attempting to clarify 7 and add to his earlier opinion, but this clarification is not based on any new evidence 8 or newly discovered arguments. “A Rule 59(e) motion may not be used to raise 9 arguments or present evidence for the first time when they could reasonably have 10 been raised earlier in the litigation.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 11 2003); see also ThermoLife Int’l, LLC v. Myogenix Corp., No. 13-CV-651 JLS 12 (MDD), 2017 WL 4792426, at *2 (S.D. Cal. Oct. 24, 2017) (striking evidence 13 attached to a motion for reconsideration that was filed to “[t]o rectify any possible 14 ambiguity” on an issue and to “complete the record”). 15 Because the declaration is improper, the Court GRANTS the Motion and 16 STRIKES Dr. Wolf’s Declaration, (ECF No. 102-3). The Court will not consider 17 the declaration or the portions of Plaintiff’s Motion for Reconsideration that rely on 18 the declaration. 19 MOTION FOR RECONSIDERATION 20 Plaintiff moves for reconsideration on the Court’s order denying class 21 certification because she believes “the Order and subsequent case law, including two 22 recent Ninth Circuit opinions, reveal that the Court should have granted class 23 certification.” (ECF No. 102-1, at 1.) Plaintiff therefore moves for reconsideration 24 on two grounds: clear error, and newly discovered evidence. 25 After reviewing Plaintiff’s arguments, the Court finds no evidence that it 26 clearly erred in denying class certification. The Court finds no clear error or manifest 27 injustice in its ruling. Next, Plaintiff points to cases decided after the Court’s class 1 cites In re Hyundai and Kia Fuel Economy Litigation, 926 F.3d 539 (9th Cir. 2019), 2 ||noting that the “Ninth Circuit recently reiterated . . . that class certification is not 3 || defeated by the inclusion of Class members with differing damages.” (Mot. at 4.) 4 ||By calling the case a “reiteration” of prior law, Plaintiff is admitting that In re 5 || Hyundai is not an “intervening change in controlling law.” See Sch. Dist. No. 1J, 5 6 ||F.3d at 1263. It is therefore not a basis for reconsideration.' The same holds true for 7 |{the other opinion Plaintiff cites, Yamagata v. Reckitt Benckiser LLC, No. 17-cv- 8 }|03529, 2019 WL 3815718 (N.D. Cal. June 5, 2019) which was issued by Judge 9 || Chhabria in the Northern District of California. This opinion issued by a district court 10 |{is not controlling and also not a basis for reconsideration. 11 Plaintiff has not presented any basis for the Court to reconsider its prior order, 12 ||and the Court DENIES Plaintiff’s Motion for Reconsideration. 13 IT IS SO ORDERED. 14 15 || DATED: January 3, 2020 /) YY 16 (yitlug (Aaphan 6 How. Cynthia Bashant 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 ||! To the extent Plaintiff also argues that another recent Ninth Circuit opinion, Corcoran v. CVS 28 Health Corp., 779 F. App’x 431 (9th Cir. 2019), warrants reconsideration, the Court disagrees, as Plaintiff acknowledges that Corcoran is also a reiteration of prior law. (See Mot. at 5.)