United States District Court, D. Nevada
ROBERT H. ODELL, JR., et al, Plaintiffs,
ALEX M. AZAR II, SECRETARY OF HELTH AND HUMAN SERVICES, et al., Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Motion for Re-Hearing (ECF No.
126) and Defendants' Motion to File Corrected Opposition
(ECF No. 135). For the reasons below, the Court denies
Plaintiffs' Motion for Re-Hearing and grants
Defendants' Motion to File Corrected Opposition.
filed the Complaint on September 18, 2015. ECF No. 1. At a
hearing on August 4, 2016, the Court gave Plaintiffs leave to
file an amended complaint. ECF No. 53. Plaintiffs filed the
operative Amended Complaint on September 9, 2016. ECF No. 57.
February 16, 2018, Plaintiffs filed a Motion for Preliminary
Injunction. ECF No. 104. Defendants responded and Plaintiffs
replied. ECF Nos. 106, 107. After holding a hearing on July
17, 2018, the Court granted the Motion for Preliminary
Injunction in a September 26, 2018 order. ECF No. 112. The
Court permitted the parties to submit proposed orders
regarding the appropriate scope of injunctive relief. ECF No.
112. Each party filed a proposed order. ECF Nos. 114, 116.
Each party then filed an additional memorandum responding to
the other party's proposal. ECF Nos. 118, 119. The Court
held a hearing on October 26, 2018 and ordered the parties to
submit a joint proposed final order. ECF No. 120. The parties
submitted a proposed order with additional briefing regarding
contested terms. ECF Nos. 121, 122, 123. The Court then
issued the scope of its relief on December 17, 2018. ECF No.
January 8, 2019, Plaintiffs filed the instant Motion for
Re-Hearing. ECF No. 126. Defendants responded on February 26,
2019 and filed the instant Motion to File Corrected
Opposition on February 27, 2019. ECF Nos. 134, 135.
Plaintiffs replied on March 1, 2019. ECF No. 136.
Court construes Plaintiffs' motion for re-hearing as a
motion to reconsider. “As long as a district court has
jurisdiction over the case, then it possesses the inherent
procedural power to reconsider, rescind, or modify an
interlocutory order for cause seen by it to be
sufficient.” City of Los Angeles, Harbor Div. v.
Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.
2001) (citation omitted) (internal quotation marks omitted).
“Whether or not to grant reconsideration is committed
to the sound discretion of the court.” Navajo
Nation v. Confederated Tribes and Bands of the Yakama Indian
Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). However,
“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.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotation and citation omitted). 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.” Id. (internal quotation and
citation omitted). Moreover, “[m]otions for
reconsideration are disfavored. A movant must not repeat
arguments already presented unless (and only to the extent)
necessary to explain controlling, intervening law or to argue
new facts. A movant who repeats arguments will be subject to
appropriate sanctions.” LR 59-1.
initial matter, the Court grants Defendants leave to file
their revised opposition. Defendants filed the revised
response only one day after the previously filed response,
and Plaintiffs do not oppose the filing. The revised
opposition does not prejudice Plaintiffs and contains only
their motion to reconsider, Plaintiffs argue that the
Court's preliminary injunction order places Plaintiffs in
a status of constant audit by Defendants. They argue that the
Court's imposition of LCD 355456 upon Plaintiffs is
contrary to the Social Security Act and contrary to the
relief Plaintiffs requested from this Court. Plaintiffs
request that the Court revise its December 17, 2018 Order by
removing paragraphs 3, 4, and 5.
respond that Plaintiffs provide no newly discovered evidence,
intervening law, or other unusual circumstances meriting
reconsideration. The Court agrees. Plaintiffs' arguments
are no different than the arguments Plaintiffs proffered in
advance of the Court's determination. In determining the
nature and scope of its injunction, the Court weighed the
Plaintiffs' motion at ECF No. 04, reply at ECF No. 107,
proposed order at ECF No. 114, memorandum at ECF No. 119, and
memorandum at ECF No. 123, in addition to Plaintiffs'
oral argument at hearings held on July 17, 2018 and October
26, 2018. The Court has fully considered Plaintiffs'
arguments. Plaintiffs do not proffer, and the Court does not
find, any circumstances meriting reconsideration.
IS HEREBY ORDERED that Plaintiffs Motion for
Re-Hearing (ECF No. 126) is DENIED and that Defendants'
Motion to File ...