Opinion
No. C 03-05785 CRB.
October 26, 2004
ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION OF THE GRANT OF PARTIAL SUMMARY JUDGMENT
Now pending before the Court is plaintiff's motion for leave to file a motion for reconsideration of the Court's grant of summary judgment on some of plaintiff's claims.
BACKGROUND
Plaintiff, a former in-house attorney for Sun Microsystems, Inc. ("Sun"), filed this action alleging that Sun unlawfully terminated his employment, failed to notify him of his COBRA rights, and unlawfully terminated his COBRA coverage. By Memorandum and Order dated August 23, 2004, the Court granted Sun's motion for summary judgment on plaintiff's wrongful termination claims on the ground that they are barred by a Release and Waiver ("Release") executed by plaintiff. The Court denied Sun's motion for summary judgment on plaintiff's claim that Sun failed to provide him with timely notice of his COBRA benefits on the ground that there was a genuine dispute as to whether Sun mailed the notice to the last address plaintiff provided to Sun. Expedited trial on this disputed issue was scheduled for September 13, 2004. Since a finding in favor of Sun with respect to the mailing of the COBRA notice would dispose of plaintiff's claim that Sun improperly terminated his COBRA benefits, the Court did not resolve the termination of COBRA benefits claim.
One week later Sun conceded it did not timely mail plaintiff's COBRA notice to his last-known address. Sun also asked the Court to nonetheless grant its summary judgment motion with respect to its termination of plaintiff's COBRA benefits. As Sun's concession mooted the factual issue to be decided at the expedited trial, the Court vacated the trial and ordered the parties to appear for a case management conference. The Court also denied Sun's request that the Court decide the termination of benefits claim on the ground that plaintiff had not had an opportunity to respond to the new cases cited by Sun.
After the case management conference plaintiff filed a motion for reconsideration of the Court's order granting partial summary judgment. He subsequently filed a motion for leave to file the motion for reconsideration.
DISCUSSION
To be granted leave to file a motion for reconsideration, a party must demonstrate one of the following:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the court before entry of the interlocutory order for which reconsideration is sought. The party shall also show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the court to consider material facts which were presented to the court before such interlocutory order.
Civil Local Rule 7-9(b). Plaintiff argues that he should be permitted to file his motion for reconsideration because the Court failed to consider material facts presented to the Court and because of new material facts occurring after the time of the order.
First, plaintiff argues that the Court erroneously failed to consider that he submitted an affidavit stating that if he had known the true reason for his termination he would not have signed the Release. The Court did consider plaintiff's affidavit and concluded that it did not create a genuine dispute of fact as to the validity of the Release. See Memorandum and Order at 5 (stating that plaintiff "testifies that if he knew he had a claim [that is, if he knew Sun had lied about the reason for his termination] he would not have signed the Release at all.").
Second, plaintiff argues that Sun's recent admission that it did have plaintiff's current address means the Court should "revisit" whether the Release is unenforceable. In particular, he asks the Court to revisit his arguments that the Release is unenforceable because (1) Sun directly deposited the consideration into plaintiff's bank account rather than making the payment at plaintiff's home address, (2) Sun made two payments on January 7, 2002 and one payment on February 23, 2002 and therefore did not make the severance payment in a "lump sum" as required by the Release, and (3) Sun did not pay the consideration required by the Release.
Sun's admission is not a "new material fact." On Sun's motion for summary judgment plaintiff asserted that he had provided Sun with his correct address. The Court concluded that this fact was disputed and for purposes of Sun's motion the Court assumed that Sun mailed plaintiff's notice to the incorrect address. The Court nonetheless rejected plaintiff's argument that Sun had breached the Release by directly depositing the payment instead of mailing to his residence and by paying plaintiff an additional $60.56 in February 2002 after having paid plaintiff over $9,600 (gross) on January 7, 2002. There are no grounds for revisiting the Court's ruling. See Civil Local Rule 7-9(c).
Plaintiff also makes a new argument: that Sun did not pay the correct amount of the COBRA premium required by the Release. In particular, in his reply memorandum in support of his motion for reconsideration he argues for the first time that the Release required Sun to pay him $297.15 for four weeks of COBRA payments and instead Sun paid him $282.60. The Court will not consider this new argument. Plaintiff could have made this argument in opposition to Sun's motion for summary judgment. The evidence of how much Sun paid plaintiff was in the record. See Declaration of Kenneth Tuffnell Exh. B. The evidence of the COBRA premium amounts was also in the record. See Declaration of Melissa Taylor Exh. E. And the evidence of how much Sun was required to pay plaintiff pursuant to the Release was in the record. See Declaration of Michael Schallop Exh. A. Thus, there are no grounds for considering this argument on a motion for reconsideration. See Civil Local Rule 7-9(b). Moreover, plaintiff made this argument for the first time in his reply memorandum. See, e.g,, Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n. 5 (9th Cir. 2003) (declining to consider argument raised for the first time in a reply brief).
In sum, plaintiff has not established any grounds for reconsideration of the Court's grant of partial summary judgment with respect to the Release. See Local Rule Accordingly, his motion for leave is DENIED.
The Court will consider all of plaintiff's submissions, however, with respect to the two remaining issues in this case: (1) the termination of plaintiff's COBRA benefits, and (2) the amount of the penalty, if any, for Sun's failure to provide plaintiff with timely notice of his eligibility for COBRA benefits. The parties have now fully briefed these issues and the Court accordingly takes them under submission.
CONCLUSION
Plaintiff's motion for leave to file a motion for reconsideration of the Court's grant of partial summary judgment is DENIED. The November 5, 2004 hearing on plaintiff's motion is VACATED.
IT IS SO ORDERED.