United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
In this case, pro se Plaintiff Charles Randolph, a death row inmate within the Nevada Department of Corrections ("NDOC"), alleges that his confidential telephone conversations with his attorney, James Colin, Esq., were "repeatedly, surreptitiously, and intentionally monitored and recorded" without a court order or consent. (Compl., ECF No. 7, at 10). On October 29, 2013, this Court entered an order dismissing Embarq Payphone Services as a defendant in this action. (ECF No. 42, at 10). Specifically, the Court concluded that Embarq, a government contractor, was acting in the ordinary course of its duties when it recorded Plaintiff's telephone calls and therefore qualified for the law enforcement exception to the Federal Wiretap Act. ( Id. at 8 (citing United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996); 18 U.S.C. § 2510(5)(a)(ii) (excluding from the definition of "electronic, mechanical, or other device" "any telephone or telegraph instrument, equipment or facility, or any component thereof... being used... by an investigative or law enforcement officer in the ordinary course of his duties"))). Plaintiff now moves for: (1) a Rule 54(b) order certifying the judgment as final, (ECF No. 43); (2) a stay pending his proposed interlocutory appeal, (ECF No. 44); and (3) reconsideration of the order dismissing Embarq, (ECF No. 45). For the reasons stated herein, the Court denies these motions.
I. Motion to Certify (ECF No. 43) and Motion to Stay (ECF No. 44)
Rule 54(b) permits a district court, in its discretion, to enter judgment after making a ruling partially disposing of a case or to wait to enter judgment until it has ruled on the remaining causes of action:
When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or third-party claim-or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). A court uses a two-step process under Rule 54(b): (1) it determines if the challenged order is a "final judgment"; and (2) it determines whether there is any just reason for delay. See Curtiss-Wright Corp. v. Gen. Elec. Corp., 446 U.S. 1, 7 (1980).
Rule 54(b) certification is generally disfavored. "Absent a seriously important reason, both the spirit of Rule 1 and the interests of judicial administration counsel against certifying claims or related issues in remaining claims that are based on interlocking facts, in a routine case, that will likely lead to successive appeals." Wood v. GCC Bend, LLC, 422 F.3d 873, 883 (9th Cir. 2005) (reversing a district court's Rule 54(b) certification in a routine, two-party, multiple claim employment discrimination case). The Wood Court stated:
This is not a complicated case. It is a routine employment discrimination action. In such cases it is typical for several claims to be made, based on both state and federal law, and for several theories of adverse treatment to be pursued. It is also common for motions to be made for summary judgment, and to be granted in part and denied in part as district judges trim and prune a case to focus on what really is at issue for trial. At least in our experience, requesting-or granting a request for-certification in ordinary situations such as this is not routine. We believe it should not become so. As put by the Supreme Court, "[p]lainly, sound judicial administration does not require that Rule 54(b) requests be granted routinely."
Id. at 879 (citation omitted).
Here, Plaintiff's dismissed claim against Embarq arises from the same facts as his claims against the remaining Defendants, and certification would likely result in unnecessary, piecemeal appeals. Therefore, as in Wood, the need to conserve judicial resources in a "routine case" justifies a delay. Accordingly, Plaintiff's motion for Rule 54(b) certification (ECF No. 43) is denied, and the motion to stay pending appeal (ECF No. 44) is denied as moot.
II. Motion to Reconsider (ECF No. 45)
A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous or would work a manifest injustice. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). This principle is embodied in the law of the case doctrine, under which "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). Nonetheless, in certain limited circumstances, a court has discretion to reconsider its prior decisions.
While Rule 59(e) and Rule 60(b) permit a district court to reconsider and amend previous orders, this is 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) (quoting 12 James William Moore, et al., Moore's Federal Practice § 59.30(4) (3d ed. 2000)) (internal quotation marks omitted).
Indeed, a district court should not grant a motion for reconsideration "absent highly unusual circumstances, unless the court (1) is presented with newly discovered evidence, (2) committed clear error, or (3) if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). A motion for reconsideration "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., 229 F.3d at 890. Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, is not grounds for reconsideration. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). A motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. ...