Babette Nickless-Purcell v. The RMR Group LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BABETTE NICKLESS-PURCELL, Case No. 24-cv-01718-BAS-DTF

12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S MOTION FOR RECONSIDERATION 14 THE RMR GROUP LLC, (ECF No. 19) 15 Defendant. 16 17 Presently before the Court is Plaintiff Babette Nickless-Purcell’s motion for 18 reconsideration. (ECF No. 19.) Plaintiff seeks reconsideration of the Court’s Order 19 Granting Defendant RMR’s Motion to Compel Arbitration. (ECF No. 17.) The motion for 20 reconsideration has been fully briefed. (ECF Nos. 19, 27, 28.) The Court finds the motion 21 suitable for determination on the papers submitted. See Civ. L.R. 7.1(d)(1). Upon review, 22 the Court DENIES Plaintiff’s motion without prejudice. 23 24 25 26 27 28 1 I. BACKGROUND 2 In its prior Order, the Court granted Defendant’s motion to compel arbitration. 3 (Arbitration Order, ECF No. 17.) In opposing that motion, Plaintiff argued that both the 4 delegation clause and the Arbitration Agreement as a whole were unconscionable. 5 (Arbitration Opp’n 8:7; 12:17, ECF No. 7.) The Court found that Plaintiff demonstrated 6 some procedural unconscionability but failed to establish substantive unconscionability. 7 (Arbitration Order, ECF No. 17.) 8 Following the Court’s Order compelling arbitration, Plaintiff contacted the firm 9 National Arbitration and Mediation (“NAM”) to initiate proceedings, apparently without 10 copying Defendant on those communications. (Reconsideration Mot. (“Mot.”) 2:9–10, 11 ECF No. 19-1; Exs. 1–4, ECF Nos. 19-3–19-6.) NAM informed Plaintiff that she was 12 required to sign a “Demand Form” to proceed. (Id.) Plaintiff sought to reject the form, but 13 NAM refused to administer the arbitration without her consent. (Mot. 2:22–25; Exs. 1–4, 14 ECF Nos. 19-3–19-6.) Notably, Plaintiff never raised her objections to the Demand Form 15 with Defendant. (Mot. 6:2–11.) 16 Plaintiff contends that she had “no ability to proceed with arbitration absent 17 acceptance of the undisclosed and rights-waiving conditions” imposed by the Demand 18 Form. (Mot. 9:25–26.) On this basis, Plaintiff argues that the Demand Form renders the 19 Arbitration Agreement substantively unconscionable. (Mot. 2:25–3:1.) 20 Plaintiff now moves for reconsideration based on newly discovered evidence— 21 specifically, the Demand Form that Plaintiff characterizes as “bespoke” to RMR. (Mot. 22 3:2–6, 4:12–17; Reply 2:6–10, ECF No. 28.) 23 II. LEGAL STANDARD 24 Federal Rule of Civil Procedure 54(b) provides that 25 [A]ny order or other decision, however designated, that 26 adjudicates fewer than all the claims or the rights and liabilities 27 of fewer than all the parties does not end the action as to any of 28 the claims or parties and may be revised at any time before the 1 entry of a judgment adjudicating all the claims and all the parties’ 2 rights and liabilities. 3 Fed. R. Civ. P. 54(b). 4 A district court may modify an interlocutory order at any time before entry of final 5 judgment. See Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996) (“[I]nterlocutory 6 orders made pre-trial are subject to modification at any time prior to final judgment.” 7 (quotation omitted)); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 465 (9th Cir. 1989). 8 The merits of such a motion can be evaluated under the Rule 59(e) standard. See Bell v. 9 Home Depot U.S.A., Inc., No. 2:12-CV-02499-DJC-CKD, 2024 WL 3011473, at *3 (E.D. 10 Cal. June 11, 2024). 11 Reconsideration under Rule 59(e) is an “extraordinary remedy.” Kona Enters., Inc. 12 v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). It should be used 13 “sparingly in the interests of finality and conservation of judicial resources.” Id. 14 Reconsideration is appropriate under Federal Rule of Civil Procedure 59(e) if: 15 (1) the court “is presented with newly discovered evidence,” (2) the court “committed clear 16 error,” or (3) “there is an intervening change in controlling law.” Carroll v. Nakatani, 342 17 F.3d 934, 945 (9th Cir. 2003) (citation omitted); Allstate Ins. Co. v. Herron, 634 F.3d 1101, 18 1111 (9th Cir. 2011). “A Rule 59(e) motion may not be used to raise arguments or present 19 evidence for the first time when they could reasonably have been raised earlier in the 20 litigation.” Kona, 229 F.3d at 890. 21 III. ANALYSIS 22 Plaintiff filed the motion for reconsideration without (1) conferring or attempting to 23 confer with Defendant in violation of this Court’s Standing Order for Civil Cases § 4(A), 24 or (2) selecting a hearing date in violation of Standing Order § 4(B). (Opp’n 2:13–18, ECF 25 No. 27; see also ECF No. 20.) Reconsideration is a noticed motion, and the omission of a 26 hearing date is not excused. (Not. Mot. 2, ECF No. 19.) 27 Plaintiff contends that because “there was no issue that could be resolved without 28 the Court’s involvement, there was nothing to meet and confer about.” (ECF No. 21.) This 1 argument fails. It is not Plaintiff’s prerogative to determine whether compliance with this 2 Court’s Standing Order is appropriate. Moreover, Defendant’s opposition demonstrates 3 that resolution of the Demand Form issue was attainable. During a post-motion meet and 4 confer, Defendant offered to jointly engage with NAM regarding the Demand Form or to 5 identify a mutually acceptable alternative arbitration provider. (Mariconti Decl. ¶¶ 10–11, 6 ECF No. 27-1.) Plaintiff failed to involve Defendant in her communications with NAM or 7 this Court. Accordingly, the Court denies the motion for reconsideration on the ground that 8 Plaintiff failed to comply with this Court’s Standing Order. 9 Although the Court does not reach the merits, it notes several additional deficiencies. 10 First, Plaintiff’s motion characterizes the Demand Form as a “bespoke” RMR form, yet 11 Plaintiff did not attach that form to the moving papers. (Exs. 1–4, ECF Nos. 19-3–19-6.) 12 Plaintiff’s counsel declares that Exhibit 2 contains the NAM Employment Demand, Rules, 13 and Fees that NAM provided—but that exhibit reflects a standard NAM form, not one 14 unique to RMR. (Hillier Decl. ¶¶ 3–4, ECF No. 19-2; Ex. 2, ECF No. 19-4.) Counsel’s 15 declaration further states that his office “filled out the NAM form that NAM provided to 16 initiate arbitration,” which suggests Plaintiff used the standard form. (Hillier Decl. ¶ 4.) 17 Second, any issues with the Demand Form could have been raised in Plaintiff’s 18 opposition to the motion to compel arbitration. (ECF No. 5.) As Defendant notes, the 19 Arbitration Agreement expressly informed Plaintiff that she could access NAM’s rules 20 through RMR’s human resources department, directly from NAM, or through NAM’s 21 website. (Opp’n 5:16–18; Ex. 1 at 2(B)(ii), ECF No. 19-3.) The Court therefore finds that 22 the Demand Form does not constitute newly discovered evidence, as it was discoverable 23 before Plaintiff opposed the motion to compel arbitration. 24 25 26 27 28 1 |}IV. CONCLUSION 2 Accordingly, the Court DENIES without prejudice Plaintiff's motion for 3 reconsideration. Plaintiff is warned that it must comply with this Court’s Standing Order 4 all future filings. 5 IT IS SO ORDERED. 6 ~ 7 DATED: April 17, 2026 (yi. (Duhark H n. Cynthia Bashant, Chief Judge United States District Court 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 eg]