1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Douglas Altschuler, et al., No. CV-21-00119-TUC-DCB
10 Plaintiffs, ORDER
11 v.
12 Chubb National Insurance Company,
13 Defendant. 14 15 The Court denies reconsideration of its decision that the choice of law in this case 16 shall be Arizona. 17 On September 20, 2021, the Court denied Defendant’s Motion for Transfer of 18 Venue and Motion to Apply New York law. On October 4, 2021, Defendant filed a Motion 19 for Reconsideration only of the Court’s ruling to apply Arizona law. In part, the Defendant 20 seeks reconsideration because the allegedly stolen Rolex watch is owned by Altschuler’s 21 wife, Werner, who is admittedly a resident of New York. The Court did not consider this 22 factor when it determined Arizona law should apply in the case; neither party argued the 23 choice of law question was distinct as between the watch and artwork. 24 It, however, appears that all parties know that the Rolex watch stolen from 25 Altschuler’s Tucson residence did not belong to his wife, even though this was the assertion 26 made by the Plaintiff in the Complaint and made by the parties in the briefs supporting the 27 Motions for Transfer of Venue and to Apply New York law. 28 1 The Plaintiff admits it is a pleading mistake, but argues the Defendant is in 2 possession of the claim file,1 which Plaintiff asserts reflects Altschuler owned the Rolex 3 watch. Likewise, Defendant deposed the Plaintiff and his wife, and both represented that 4 he, not his wife Werner, owned the Rolex watch. To the extent the Defendant bases the 5 Motion for Reconsideration on the Rolex watch being owned by Altschuler’s wife, who 6 admittedly is a resident of New York, the Motion for Reconsideration is denied. 7 The Defendant does not object to the Plaintiff’s Motion to File an Amended 8 Complaint to correct this pleading mistake. The Court shall grant the Plaintiff leave to file 9 the Amended Complaint, which shall also be amended to address this Court’s jurisdiction 10 over the case on the basis of diversity between citizens of different states. 28 U.S.C. § 1332. 11 In the proposed Amended Complaint, the Plaintiff continues to allege he is a resident of 12 Arizona. See (Order (Doc. 29) at 3-4 (explaining that diversity jurisdiction is based on 13 citizenship, not residency; there may be many residents but only one domicile). This Court 14 has an independent and continuing obligation to address sua sponte whether it has subject 15 matter jurisdiction over a case, Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999), 16 “even if the issue is neglected by the parties,” United States v. Ceja–Prado, 333 F.3d 1046, 17 1049 (9th Cir.2003). See also Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 18 2004). Jurisdiction is proper under 28 U.S.C. § 1332, if there is diversity of citizenship 19 between the parties. (Order (Doc. 29) at 3); Allstate Ins. Co., 358 F.3d at 1093.
20 1 Since the briefing of the Motion to Change Venue and Apply New York law, the Plaintiff has continuously complained that the claim file remains in Defendant’s possession and has 21 not been disclosed to the Plaintiff. The Court notes that on October 6, 2021, it issued a scheduling Order, which among other deadlines set discovery to close on May 31, 2022. 22 Pursuant to F.R.Civ.P. 16(b)(3)(A), district courts enter scheduling orders to establish deadlines for case management, including completing discovery and filing motions. “A 23 schedule may be modified only for good cause and with the judge's consent.” F.R.Civ.P. 16(b)(4). A “scheduling conference order is not a frivolous piece of paper, idly entered, 24 which can be cavalierly disregarded without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992). Rule 16(b)'s “good cause” standard is met: “if [a deadline 25 cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment, Subdivision (b), Item 4)). 26 The Court notes that discovery is about half-way complete. Federal courts deny extension requests that are brought on the eve of the close of discovery. See ACS Int'l Prod. LP v. 27 State Auto. Mut. Ins. Co., 2021 WL 2805589, at *2 (D. Ariz. July 6, 2021); United States ex rel. Gohil v. Sanofi U.S. Services Inc., 2020 WL 1888966, at *4 (E.D. Pa. Apr. 16, 2020) 28 (collecting cases and holding “district court is well within its discretion when it denies untimely discovery requests that could have been made at an earlier date”). 1 Motions to reconsider are appropriate only in rare circumstances, such as where the 2 Court is: “(1) presented with newly discovered evidence, (2) committed clear error or the 3 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 4 law.” School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th 5 Cir.1993). A motion for reconsideration should not be used to ask a court “to rethink what 6 the court had already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel 7 Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). 8 Here, the assertion of a change in facts based on Altschuler’s wife, Werner’s 9 residence being New York fails because she did not own the watch. Plaintiff Altschuler 10 owned the watch. 11 The Defendant asserts reconsideration is warranted because the Court committed 12 clear error and its choice of Arizona law is manifestly unjust. In such a case, a motion to 13 reconsider would be appropriate where the Court has patently misunderstood a party, has 14 made a decision outside the adversarial issues presented to the court by the parties, or has 15 made an error not of reasoning but of apprehension. The Court did not misunderstand the 16 parties’ arguments when it considered the Motion to Apply New York law. It did not 17 misapprehend the law. 18 The Defendant argues that the Court misapplied Bates v. Superior Court of the State 19 of Arizona, 749 P.2d 1367 (1988) and Lange v. Penn Mut. Life Insur. Co., 843 F.2d 1175 20 (9th Cir. 1988) (applying Arizona law to bad faith claim). Defendant challenges as 21 inconsistent with this law the Court’s finding: “Plaintiffs’ injury from the nonpayment of 22 the Plaintiffs’ claim occurred in Arizona, where the artwork was allegedly located, stolen, 23 and has not been replaced because the value of Plaintiffs’ Arizona property has been 24 reduced.” (Order (Doc. 29) at 8.) The Defendant’s argument of inconsistency is based on 25 the Bate court’s consideration of the place, Michigan, where plaintiff was a resident when 26 she purchased medical insurance there, “she was injured in Illinois, then moved to Arizona.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Douglas Altschuler, et al., No. CV-21-00119-TUC-DCB
10 Plaintiffs, ORDER
11 v.
12 Chubb National Insurance Company,
13 Defendant. 14 15 The Court denies reconsideration of its decision that the choice of law in this case 16 shall be Arizona. 17 On September 20, 2021, the Court denied Defendant’s Motion for Transfer of 18 Venue and Motion to Apply New York law. On October 4, 2021, Defendant filed a Motion 19 for Reconsideration only of the Court’s ruling to apply Arizona law. In part, the Defendant 20 seeks reconsideration because the allegedly stolen Rolex watch is owned by Altschuler’s 21 wife, Werner, who is admittedly a resident of New York. The Court did not consider this 22 factor when it determined Arizona law should apply in the case; neither party argued the 23 choice of law question was distinct as between the watch and artwork. 24 It, however, appears that all parties know that the Rolex watch stolen from 25 Altschuler’s Tucson residence did not belong to his wife, even though this was the assertion 26 made by the Plaintiff in the Complaint and made by the parties in the briefs supporting the 27 Motions for Transfer of Venue and to Apply New York law. 28 1 The Plaintiff admits it is a pleading mistake, but argues the Defendant is in 2 possession of the claim file,1 which Plaintiff asserts reflects Altschuler owned the Rolex 3 watch. Likewise, Defendant deposed the Plaintiff and his wife, and both represented that 4 he, not his wife Werner, owned the Rolex watch. To the extent the Defendant bases the 5 Motion for Reconsideration on the Rolex watch being owned by Altschuler’s wife, who 6 admittedly is a resident of New York, the Motion for Reconsideration is denied. 7 The Defendant does not object to the Plaintiff’s Motion to File an Amended 8 Complaint to correct this pleading mistake. The Court shall grant the Plaintiff leave to file 9 the Amended Complaint, which shall also be amended to address this Court’s jurisdiction 10 over the case on the basis of diversity between citizens of different states. 28 U.S.C. § 1332. 11 In the proposed Amended Complaint, the Plaintiff continues to allege he is a resident of 12 Arizona. See (Order (Doc. 29) at 3-4 (explaining that diversity jurisdiction is based on 13 citizenship, not residency; there may be many residents but only one domicile). This Court 14 has an independent and continuing obligation to address sua sponte whether it has subject 15 matter jurisdiction over a case, Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999), 16 “even if the issue is neglected by the parties,” United States v. Ceja–Prado, 333 F.3d 1046, 17 1049 (9th Cir.2003). See also Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 18 2004). Jurisdiction is proper under 28 U.S.C. § 1332, if there is diversity of citizenship 19 between the parties. (Order (Doc. 29) at 3); Allstate Ins. Co., 358 F.3d at 1093.
20 1 Since the briefing of the Motion to Change Venue and Apply New York law, the Plaintiff has continuously complained that the claim file remains in Defendant’s possession and has 21 not been disclosed to the Plaintiff. The Court notes that on October 6, 2021, it issued a scheduling Order, which among other deadlines set discovery to close on May 31, 2022. 22 Pursuant to F.R.Civ.P. 16(b)(3)(A), district courts enter scheduling orders to establish deadlines for case management, including completing discovery and filing motions. “A 23 schedule may be modified only for good cause and with the judge's consent.” F.R.Civ.P. 16(b)(4). A “scheduling conference order is not a frivolous piece of paper, idly entered, 24 which can be cavalierly disregarded without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992). Rule 16(b)'s “good cause” standard is met: “if [a deadline 25 cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment, Subdivision (b), Item 4)). 26 The Court notes that discovery is about half-way complete. Federal courts deny extension requests that are brought on the eve of the close of discovery. See ACS Int'l Prod. LP v. 27 State Auto. Mut. Ins. Co., 2021 WL 2805589, at *2 (D. Ariz. July 6, 2021); United States ex rel. Gohil v. Sanofi U.S. Services Inc., 2020 WL 1888966, at *4 (E.D. Pa. Apr. 16, 2020) 28 (collecting cases and holding “district court is well within its discretion when it denies untimely discovery requests that could have been made at an earlier date”). 1 Motions to reconsider are appropriate only in rare circumstances, such as where the 2 Court is: “(1) presented with newly discovered evidence, (2) committed clear error or the 3 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 4 law.” School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th 5 Cir.1993). A motion for reconsideration should not be used to ask a court “to rethink what 6 the court had already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel 7 Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). 8 Here, the assertion of a change in facts based on Altschuler’s wife, Werner’s 9 residence being New York fails because she did not own the watch. Plaintiff Altschuler 10 owned the watch. 11 The Defendant asserts reconsideration is warranted because the Court committed 12 clear error and its choice of Arizona law is manifestly unjust. In such a case, a motion to 13 reconsider would be appropriate where the Court has patently misunderstood a party, has 14 made a decision outside the adversarial issues presented to the court by the parties, or has 15 made an error not of reasoning but of apprehension. The Court did not misunderstand the 16 parties’ arguments when it considered the Motion to Apply New York law. It did not 17 misapprehend the law. 18 The Defendant argues that the Court misapplied Bates v. Superior Court of the State 19 of Arizona, 749 P.2d 1367 (1988) and Lange v. Penn Mut. Life Insur. Co., 843 F.2d 1175 20 (9th Cir. 1988) (applying Arizona law to bad faith claim). Defendant challenges as 21 inconsistent with this law the Court’s finding: “Plaintiffs’ injury from the nonpayment of 22 the Plaintiffs’ claim occurred in Arizona, where the artwork was allegedly located, stolen, 23 and has not been replaced because the value of Plaintiffs’ Arizona property has been 24 reduced.” (Order (Doc. 29) at 8.) The Defendant’s argument of inconsistency is based on 25 the Bate court’s consideration of the place, Michigan, where plaintiff was a resident when 26 she purchased medical insurance there, “she was injured in Illinois, then moved to Arizona. 27 The court found, she continued to receive medical benefits under her policy in Arizona 28 until it was terminated, therefore, the injury from the nonpayment of medical claims 1 || occurred in Arizona where Plaintiff was living and receiving medical care when coverage was terminated.” Jd. (citing Bates, 749 P.2d at 47-48, 49-50). 3 Defendant asks the Court on reconsideration to find that where Plaintiff is living is 4|| the determinative factor. The Court does not agree. The determinative factor is where the || Plaintiff was receiving the benefit of coverage when it was terminated and that was || Arizona. The Defendant’s Motion for Reconsideration asks the Court “to rethink what the || court had already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel 8 || Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). This is not an appropriate use of a motion for reconsideration. Jd. Problems rarely arise which meet the standard for 10 || review on reconsideration and a motion to reconsider should be equally rare. Above the || Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. at 101, see also, Sullivan v. Faras-RLS 12 || Group, Ltd., 795 F. Supp. 305, 308-09 (D. Ariz. 1992). This is not a rare case. 13 Accordingly, 14 IT IS ORDERED that the Motion for Reconsideration (Doc. 30) is DENIED. 15 IT IS FURTHER ORDERED that the Motion to Amend (Doc. 43) is GRANTED. The Amended Complaint shall include a factual basis to establish this Court’s jurisdiction 17 || over this action. 18 Dated this 7th day of February, 2022. 19 20 C= Honorable David C. But 23 United StatesPrstrict Judge 24 25 26 27 28
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