United States District Court, D. Nevada
ANTHONY M. TRACY, Plaintiff,
US BANK, HOME MORTGAGE, NATIONAL DEFAULT SERVICING CORPORATION, DOES I-X, inclusive and ROE CORPORATIONS I-X, inclusive, Defendants.
M Navarro, Chief Judge United States District Judge
before the Court is the Motion to Reconsider, (ECF No. 96),
filed by Plaintiff Anthony M. Tracy
(“Plaintiff”). Defendant U.S. Bank, National
Association (“U.S. Bank”) filed a response, (ECF
No. 98), and Plaintiff filed a reply, (ECF No. 104). For the
reasons discussed below, the Court DENIES Plaintiff's
case arises out of foreclosure proceedings against
Plaintiff's property located at 106 Boysenberry Lane,
Henderson, Nevada 89074 (“the Property”). On
October 10, 2014, Plaintiff filed a Complaint in state court
against U.S. Bank. (Ex. A to Pet. Removal, ECF No. 1). In
December 2014, U.S. Bank removed the case to this Court.
(Pet. Removal, ECF No. 1). Shortly thereafter, Plaintiff
filed an Amended Complaint asserting the following claims
against U.S. Bank: (1) breach of contract; (2) breach of
implied covenant of good faith and fair dealing; (3) specific
performance; (4) fraud; and (5) intentional infliction of
emotional distress. (Am. Compl. ¶¶ 52-78).
January 25, 2016, U.S. Bank filed a Motion for Summary
Judgment on all of Plaintiff's causes of action. (ECF No.
64). The Court heard oral arguments on this motion on
September 22, 2016. (ECF No. 92). On September 30, 2016, the
Court granted U.S. Bank summary judgment on all of
Plaintiff's claims except the claim for breach of implied
covenant of good faith and fair dealing. (ECF No. 93).
Plaintiff now asks the Court to reconsider its prior Order
granting summary judgment.
motion for reconsideration should not be granted, absent
highly unusual circumstances.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).
Reconsideration is appropriate where: (1) the court is
presented with newly discovered evidence, (2) the court
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law. School Dist. No. 1J, Multnomah County v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
However, a motion for reconsideration is not a mechanism for
rearguing issues presented in the original filings,
Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.
1985), or “advancing theories of the case that could
have been presented earlier, ” Resolution Trust
Corp. v. Holmes, 846 F.Supp. 1310, 1316 (S.D. Tex.
1994). Thus, Rules 59(e) and 60(b) are not “intended to
give an unhappy litigant one additional chance to sway the
judge.” See Durkin v. Taylor, 444 F.Supp. 879,
889 (E.D. Va. 1977).
instant Motion, Plaintiff argues that the Court erroneously
determined that U.S. Bank sent Plaintiff a “written
request” for modification of the loan agreement in
accordance with the Errors and Omissions Compliance Agreement
(“EOCA”). (See Mot. to Reconsider
3:4-5:27, ECF No. 96). Plaintiff premises this argument on
U.S. Bank's failure to include the word
“request” in the revised loan agreement and
accompanying letter. (Id.). Based on the Court's
alleged oversight on this issue, Plaintiff argues that the
Court should reverse summary judgment as to all claims.
response, U.S. Bank asserts that Plaintiff's Motion: (1)
fails to meet the standards for reconsideration; and (2)
improperly advances a new theory regarding whether the
revised agreement constituted a “written
request.” (See Def.'s Resp. 7:13-9:16, ECF
No. 98). U.S. Bank is correct. A motion for reconsideration
should not be “used to ask the Court to rethink what it
has already thought.” Motorola, Inc. v. J.B.
Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D. Ariz.
2003); see also Backlund v. Barnhart, 778 F.2d 1386,
1388 (9th Cir. 1985). Furthermore, 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 Enterprises, Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000).
Plaintiff does not offer any evidence that was unavailable
when the Court decided the summary judgment issue. Rather,
Plaintiff relies on the new argument that U.S. Bank did not
provide a “written request” under the EOCA.
Defendant failed to raise this argument in the briefing on
the summary judgment motion. (See Pl.'s Resp. to
MSJ 10:2-12:11, ECF No. 71) (asserting that U.S. Bank
breached the contract by failing to give Plaintiff a
reason for the loan modification and failing to
allow Plaintiff the full thirty days to accept the
modification). Accordingly, the Court finds that Plaintiff
has not presented proper grounds for reconsideration.
the extent the Court does consider Plaintiff's argument,
the Court nonetheless finds that Plaintiff's argument
lacks merit. Notably, Plaintiff provides no legal authority
to support the assertion that a request made under the EOCA
must contain the word “request” to be effective.
As explained in the prior Order, the Court reviewed the
documents in question and found the language to be sufficient
to satisfy the EOCA. (See Order 6:7-9, ECF No. 93)
(citing Ex. K to Pace. Decl., ECF No. 66-11). Having reviewed
the record in this case, the Court can discern no reason to
depart from its prior Order. Plaintiffs Motion is therefore
IS HEREBY ORDERED that Plaintiffs Motion to