Opinion
No. 3:12-cv-01317-HZ
11-05-2012
HARLEY-DAVIDSON CREDIT CORPORATION, a Nevada corporation, Plaintiff, v. ANDY TURUDIC, Defendant.
Daniel C. Fleming Micci J. Weiss WONG FLEMING PC Michael P. O'Rourke O'ROURKE LAW GROUP, PC Attorneys for Plaintiff Andy Turudic Pro se Defendant
OPINION & ORDER
Daniel C. Fleming
Micci J. Weiss
WONG FLEMING PC
Michael P. O'Rourke
O'ROURKE LAW GROUP, PC
Attorneys for Plaintiff Andy Turudic
Pro se Defendant HERNANDEZ, District Judge:
BACKGROUND
This action arises out of two agreements signed by Andy Turudic ("Defendant"): an Aircraft Secured Promissory Note ("Promissory Note") and an Aircraft Security Agreement ("Security Agreement"). Under the Promissory Note, Defendant received $132,000 for the purchase of a Mooney Model M20K aircraft (the "Aircraft"). Compl., Ex. A, pp. 1-2. On April 2, 2011, Defendant stopped making the required loan payments under the Promissory Note. See Id., ¶¶ 8-9; see also Answer, ¶¶ 47, 89. On November 2, 2011, Harley-Davidson Credit Corp. ("Plaintiff") filed this action alleging breach of contract by Defendant.
Plaintiff filed a Motion for Order to Dismiss Counterclaims and Third-Party Complaint and to Strike Affirmative Defenses and for Summary Judgment ("Plaintiff's Motion for Summary Judgment") and in response, Defendant filed a Counter-Motion for Summary Judgment, To Conform the Pleadings to the Evidence, To Strike, and Motion to Dismiss Plaintiff's Claims ("Defendant's Motion for Summary Judgment"). On August 10, 2012, I issued an Opinion & Order granting in part and denying in part Plaintiff's Motion for Summary Judgment and denying Defendant's Motion for Summary Judgment.
After issuing the August 10, 2012, Opinion & Order, Plaintiff filed a Motion to Enforce Court Order (doc. #36) and Motion for Reconsideration (doc. #37). Defendant filed a Motion for a New Trial Under Fed R CP 59 ("Motion for New Trial") (doc. #38), Motion to Strike, and Objection to, Plaintiff's September 11 Affidavit Filing ("Motion to Strike I") (doc. #40), Motion to Stay Order and to Stay Plaintiff's Motion for Enforcement of Court Order ("Motion to Stay") (doc. #42), and Motion to Strike Plaintiff's Motion to Enforce Court Order, and Motion to Enforce Lien ("Motion to Strike II") (doc. #45).
For the reasons that follow, the parties' motions are DENIED.
DISCUSSION
I. Improper Motions
Local Rule 7-1(c) provides that "[m]otions may not be combined with any response, reply, or other pleading." Accordingly, insofar as the parties file motions in combination with any of their responses or replies, they are in violation of Local Rule 7-1 and are denied.
II. Motion to Stay
Defendant seeks a stay of this Court's August 10, 2012, Opinion & Order and a stay of Plaintiff's Motion to Enforce Court Order. Staying the "enforcement of a judgment pending the outcome of an appeal" is "part of [a federal court's] traditional equipment for the administration of justice." Nken v. Holder, 556 U.S. 418, 421 (2009). A stay pending appeal is not, however, "a matter of right". Id. at 427, 433. It is subject to the court's discretion, and is exercised only if warranted by the "circumstances of the particular case." Id. at 433. "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 433-34.
Courts consider the following four traditional factors before issuing a stay: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Golden Gate Rest. Ass'n v. City and Cnty. of S.F., 512 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Defendant makes an insufficient showing entitling him to the stay he seeks. Defendant does not specifically argue how he satisfies even one of the Hilton factors, let alone all four of the Hilton factors. In addition, I find that Defendant has not met any of the Hilton factors. Accordingly, Defendant's motion to stay is denied.
III. Motion to Enforce Court Order
Plaintiff seeks an order requiring Defendant to surrender the Aircraft logbooks pursuant to this Court's August 10, 2012, Opinion & Order. Plaintiff, however, does not cite a single authority supporting its motion and does not provide any persuasive argument as to why I must issue the order it seeks where a judgment has yet to be entered in this case and where the parties will soon proceed to trial on the remaining claims in this action. Accordingly, Plaintiff's motion is denied.
IV. Motion for Reconsideration
Plaintiff seeks reconsideration of this Court's August 10, 2012, Opinion & Order granting in part and denying in part its Motion for Summary Judgment. Plaintiff asserts that it has a security interest in the entire Aircraft, including the repaired engine and alternator, and is entitled to attorneys' fees and costs of $132,792.09.
Plaintiff represents that it will return the ballast of the Aircraft to Defendant.
Plaintiff's arguments are unavailing. Although Rule 59(e) [of the Federal Rules of Civil Procedure ("Rule")] permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation and quotation marks omitted). "Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enter., Inc., 229 F.3d at 890 (emphasis in original).
"Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances." Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994) (citation and quotation marks omitted). Under Rule 60, a court may grant reconsideration based on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b).
The standard for motions seeking relief from judgment on the ground of newly discovered evidence are the same for motions brought under Rule 59 or Rule 60(b)(2). See Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990) (citation omitted). Under the test for relief from judgment based upon newly discovered evidence, Plaintiff "must show the evidence (1) existed at the time of the trial, (2) could not have been discovered through due diligence, and (3) was of such magnitude that production of it earlier would have been likely to change the disposition of the case." Id. (citation and internal quotation marks omitted).
Plaintiff fails to state under which rule it brings its motion for reconsideration in its opening brief and the motion for reconsideration itself. Plaintiff, however, does cite Rules 59 and 60 in its reply brief. A motion for reconsideration may be brought under Rule 59(e) and 60(b), both of which are analyzed under different factors. See Hinton v. Pac. Enter., 5 F.3d 391, 395 (9th Cir. 1993) ("[A] party should indicate which federal rule governs . . . [a] motion for reconsideration of summary judgment [which] is appropriately brought under either Rule 59(e) or Rule 60(b)") (internal quotation marks omitted); see also Fed. R. Civ. P. 59(e), 60(b).
Plaintiff asserts that the Aircraft engine and alternator were repaired, not replaced. Plaintiff maintains that because the Security Agreement gives it a security interest in all repaired parts, it has a security interest in the Aircraft engine and alternator. Plaintiff further asserts that even if the engine and alternator were replaced, it would still have a security interest in the engine and alternator because they "accede" to the Aircraft and because the Security Agreement gives Plaintiff a security interest in the entire Aircraft.
Plaintiff's arguments are unavailing. The arguments posed by Plaintiff have already been presented and considered by this Court, are improperly raised for the first time in this motion for reconsideration, or fail to establish that the evidence on which Plaintiff now submits for the first time could not have been discovered with reasonable diligence. See S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (Rule 60(b) allows a district judge to provide relief from a final judgment on the grounds of . . . newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)") (emphasis added). Although Plaintiff now submits for the first time statements by Mark Strassel ("Strassel") and other evidence purportedly showing that the Aircraft engine and alternator were merely repaired, Plaintiff fails to establish that the new evidence could not have been discovered with reasonable diligence before this Court's August 10, 2012, Opinion & Order. See Fed. R. Civ. P. 60(b)(2). Even if I were to consider Plaintiff's newly submitted evidence, it would at most, only create a genuine issue of material fact as to whether the engine and alternator were repaired within the meaning of the Security Agreement. Lastly, Plaintiff fails to demonstrate that this Court committed clear error, mistake, fraud, or any other basis that would justify reconsideration.
Strassel is Plaintiff's Director of Operations.
Plaintiff submits, among other things, Strassel's statements that Plaintiff "continued its due diligence" after Defendant refused "to turn the log books over" and that "[o]n August 24, 2012, [Strassel] finally was able to get a copy of the log book entry relating to the repair of the engine in the Aircraft". Supplemental Certification in Support of Motion for Reconsideration ("Supplemental Certification"), ¶ 11.
In summary, Plaintiff provides insufficient grounds upon which to grant its motion for reconsideration. Accordingly, Plaintiff's motion for reconsideration is denied.
V. Motion for a New Trial
Defendant seeks a "new trial" under Rule 59(a)(2). Defendant requests that this Court "correct, modify, amend its findings of fact and conclusions of law in its August 10, 2012 Opinion and Order" and requests that this Court "retry" issues already argued by the parties and considered by the Court. Def.'s Mot., pp. 2, 15. The arguments and authority presented by Defendant do not support granting Defendant's Rule 59(a)(2) motion, let alone warrant reconsidering issues already addressed by this Court or amending the August 10, 2012, Opinion and Order. Defendant's Motion for New Trial is therefore denied.
Rule 59(a)(2) provides that "[a]fter a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment."
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VI. Motion to Strike I
Defendant moves to strike the Certification and Affidavit of Mark Strassel supporting Plaintiff's motion for reconsideration as "untimely". Mot. to Strike I, p. 1. As discussed above, Plaintiff provides an insufficient basis on which to grant its motion for reconsideration. Accordingly, Defendant's motion to strike is denied as moot.
VII. Motion to Strike II
Defendant seeks an order striking Plaintiff's Motion to Enforce Court Order and an order "to enforce Defendant's $24,000 lien against Plaintiff. Mot. to Strike II, p. 1. Defendant contends that the August 10, 2012, Opinion & Order "merely declared Plaintiff's entitlement to the logbooks and did not compel their unconditional surrender". Id., pp. 2-3 (emphasis in original). Defendant states that he intends to hold the logbooks as "[c]ollateral" until "Defendant's lien has been fully satisfied by Plaintiff. Id., p. 3.
As discussed above, Defendant fails to establish that he is entitled to the stay he seeks. In addition, contrary to Defendant's assertion, my August 10, 2012, Opinion & Order did not state that Defendant has a $24,000 lien on the Aircraft. Simply put, Defendant's arguments lack merit and his motion to strike is denied.
CONCLUSION
For the reasons above, (1) Plaintiff's Motion to Enforce Court Order (doc. #36) is DENIED; (2) Plaintiff's Motion for Reconsideration (doc. #37) is DENIED; (3) Defendant's Motion for a New Trial (doc. #38) is DENIED; (4) Defendant's Motion to Strike I (doc. #40) is DENIED; (5) Defendant's Motion to Stay (doc. #42) is DENIED; and (4) Defendant's Motion to Strike II (doc. #45) is DENIED.
IT IS SO ORDERED.
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MARCO A. HERNANDEZ
United States District Judge