United States District Court, D. Nevada
ORDER DENYING MOTION FOR RECONSIDERATION AND MOTION
FOR PRELIMINARY INJUNCTION [ECF NOS. 119, 120]
P. GORDON UNITED STATES DISTRICT JUDGE
previously granted defendant SFR Investments Pool 1,
LLC's motion for a preliminary injunction and temporarily
enjoined plaintiff Bank of New York Mellon (BONY) from
proceeding with a non-judicial foreclosure of the property
that lies at the heart of this lawsuit. ECF No. 95. I
directed the parties to file supplemental briefs regarding
the propriety of continuing to enjoin the sale given that SFR
has not filed a counterclaim in this case. I then denied
SFR's supplemental motion for a preliminary injunction.
ECF No. 117. SFR moves for reconsideration and again moves
for a preliminary injunction. I deny the motions.
district court “possesses the inherent procedural power
to reconsider, rescind, or modify an interlocutory order for
cause seen by it to be sufficient, ” so long as it has
jurisdiction. City of L.A., Harbor Div. v. Santa Monica
Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quotation
and emphasis omitted); see also Moses H. Cone Mem'l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983)
(citing Fed.R.Civ.P. 54(b)). “Reconsideration is
appropriate if the district court (1) is presented with newly
discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993). A district court also may
reconsider its decision if “other, highly unusual,
circumstances” warrant it. Id. “A motion
for reconsideration is not an avenue to re-litigate the same
issues and arguments upon which the court already has
ruled.” In re AgriBioTech, Inc., 319 BR 207,
209 (D. Nev. 2004). Additionally, a motion for
reconsideration may not be based on arguments or evidence
that could have been raised previously. See Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
contends my order was clearly erroneous because it is was
based on “the premise that the deed of trust is valid
until proven extinguished.” ECF No. 119 at 2. SFR
states in its reply that I “found the burden lies with
SFR i.e. that SFR has to prove the sale extinguished the deed
of trust, and until such time as this is proven, the deed of
trust remains valid.” ECF No. 129 at 3. SFR is
incorrect that I made any such findings. Indeed, I said
nothing about whether the deed of trust was valid or about
who bore the burden of proof regarding the deed of
trust's validity. My order was based on the fact that the
only claims pending before this court are asserted by BONY.
Thus, the best result SFR can hope for in this case (at least
at this juncture), is that BONY loses on its claims. If BONY
nevertheless attempts to proceed with a non-judicial
foreclosure, it perhaps does so at its peril from claims SFR
may pursue against BONY.
least as of this date, SFR has asserted no claims against
BONY and has no right to affirmative relief in the form of an
injunction in this lawsuit. As I stated in my prior order,
under federal law, “[w]hen a plaintiff seeks injunctive
relief based on claims not pled in the complaint, the court
does not have the authority to issue an injunction.”
Pac. Radiation Oncology, LLC v. Queen's Med.
Ctr., 810 F.3d 631, 633 (9th Cir. 2015). That is because
a preliminary injunction “is appropriate when it grants
relief of the same nature as that to be finally
granted.” Id. at 636 (citing De Beers
Consol Mines v. United States, 325 U.S. 212, 220
(1945)); see also Profil Institut Fur
Stoffwechselforschung GmbH v. ProSciento, Inc., No.
16CV1549-LAB (BLM), 2017 WL 1394089, at *1 (S.D. Cal. Feb.
28, 2017) (relying on De Beers to deny injunctive
relief to a defendant who had not asserted a counterclaim).
reliance on Resources Group, LLC v. Nevada Association
Services, Inc., is misplaced. That case discussed the
burdens of proof in litigation. --- P.3d --, 135 Nev. Adv.
Op. 8, 2019 WL 1233076, at *1, 3 (Nev. 2019) (en banc). It
says nothing about whether a party who has not asserted a
claim or counterclaim nonetheless may obtain injunctive
relief to stop the non-judicial foreclosure of a deed of
trust that no court has declared invalid (or valid).
therefore deny SFR's motion for reconsideration. I also
deny SFR's motion for preliminary injunction because,
although SFR states that it intends to file a counterclaim if
necessary, it has not done so. The analysis in my prior order
thus still applies.
THEREFORE ORDERED defendant SFR Investments Pool 1, LLC's
motion for reconsideration (ECF No. 119) and
motion for a ...