1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ian Gage, No. CV-19-02745-PHX-DLR
10 Plaintiff, ORDER
11 v.
12 Midwestern University,
13 Defendant. 14 15 16 At issue is Plaintiff Ian Gage’s motion for reconsideration of the Court’s May 2, 17 2025 order granting in part Mr. Gage’s motion to conduct additional discovery and to 18 supplement the evidentiary record. (Doc. 112.) Motions for reconsideration should be 19 granted only in rare circumstances. Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 20 1351 (D. Ariz. 1995). Mere disagreement with a previous order is an insufficient basis for 21 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 22 1988). “Reconsideration is appropriate if the district court (1) is presented with newly 23 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 24 or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah 25 Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LRCiv 7.2(g).1 Such
26 1 Mr. Gage cites to Federal Rules of Civil Procedure 59(e) and 60(a) and (b), but those rules do not apply in this context. Rule 59(e) governs motions to alter or amend a 27 judgment. The order Mr. Gage seeks reconsideration of did not enter a judgment. Rule 60(a) permits the Court to correct “clerical mistakes or mistakes arising from oversight or 28 omission.” Mr. Gage has not identified clerical errors or oversights, but instead takes issue with the Court’s substantive analysis. Finally, Rule 60(b) applies only to final judgments, 1 motions should not be used for the purpose of asking a court “‘to rethink what the court 2 had already thought through—rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 3 1351 (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. 4 Va. 1983)). 5 Mr. Gage does not present the Court with newly discovered evidence, nor does he 6 identify any changes in controlling law that have occurred in the time since the Court’s 7 order issued. Instead, Mr. Gage argues that the Court’s order was clearly erroneous. To be 8 clearly erroneous, a decision must be “more than just maybe or probably wrong; it must . . 9 . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” 10 Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988); see 11 also Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 502 (9th Cir. 1991). Mr. 12 Gage has not shown clear error. At most, Mr. Gage has registered his disagreement with 13 the Court’s ruling and urged the Court to rethink what it has already thought through. 14 First, Mr. Gage argues that the Court erred by stating that “he wished to supplement 15 the record with additional discovery material.” (Doc. 113 at 2.) The Court did not err. Pages 16 30-31 of the transcript of the telephonic conference held on January 14, 2025, reflects that 17 Mr. Gage wanted to supplement the record with materials that he believes are currently 18 missing from the record, including the results of a pulmonary function test (“PFT”) and 19 communications with Hartford Insurance. (Doc. 98 at 30-31.) Mr. Gage asked for other 20 relief as well, including discovery into allegations of fraud and spoliation of evidence. But 21 that does not change the fact that Mr. Gage also sought permission to conduct additional 22 discovery and supplement the record. The Court did not err in describing this portion of 23 Mr. Gage’s request. 24 Second, Mr. Gage argues that the Court erred by sua sponte scheduling a third 25 summary judgment motion “before new discovery could unfold and while evidentiary 26 disputes remain unresolved.” (Doc. 113 at 3.) The Court did not clearly err. The Ninth
27 orders, or proceedings. The order Mr. Gage seeks reconsideration of is not a judgment, nor is it a final (i.e., case dispositive) order. It instead is an interlocutory discovery and case 28 management order. As such, Mr. Gage’s motion for reconsideration is governed by Local Rule 7.2(g). 1 Circuit instructed the Court to consider whether the evidence in the record raises a genuine 2 dispute of material fact as to whether the symptoms of Mr. Gage’s formaldehyde sensitivity 3 and his respiratory impairments substantially limit a major life activity. (Doc. 97-1 at 2.) 4 That language corresponds to the summary judgment standard, which is to say the Ninth 5 Circuit remanded for the Court to reconsider whether Defendant Midwestern University 6 (“the University”) is entitled to summary judgment, or whether there is a genuine dispute 7 of material fact that requires a trial. To accomplish this, the Court is left with two options. 8 First, it can rely on the summary judgment briefing that has already taken place. Second, it 9 can allow the parties to supplement their summary judgment briefing. The Court chose the 10 second option, and it did not do so sua sponte—the University asked for permission to 11 supplement the summary judgment briefing. What’s more, the Court did so for a logical 12 reason. It had just granted Mr. Gage permission to supplement the record with the PFT and 13 to conduct some additional discovery that he contends was withheld earlier in the case. 14 Without supplemental summary judgment briefing, there would be no opportunity for Mr. 15 Gage to introduce this new evidence before the Court considers whether genuine disputes 16 of material fact exist. The Court ordered supplemental briefing so that Mr. Gage could have 17 a fair opportunity to supplement the record with any new, relevant evidence that he might 18 receive through the additional discovery the Court has authorized, and so the parties could 19 address such evidence. Mr. Gage’s contention that the Court ordered new briefing “before 20 new discovery could unfold” is demonstrably untrue. The Court’s order set the deadline 21 for supplemental briefing far enough out to permit Mr. Gage to serve and receive responses 22 to the additional discovery beforehand.2
23 2 Mr. Gage also makes merits arguments about the nature of his alleged disability, citing to 29 C.F.R. § 1910.1048 and UAW v. Pendergrass, 878 F.2d 389 (D.C. Cir. 1989). 24 Mr. Gage is free to raise these arguments again in his supplemental summary judgment response brief, and the Court will consider them at that time. Nothing in the Court’s May 25 2, 2025 order resolved those merits issues. The same is true regarding Mr. Gage’s objection to the use of what he describes as “HIPPA-stolen medical records.” (Doc. 113 at 4.) If Mr. 26 Gage has objections to the University’s summary judgment evidence, he may raise them in his supplemental summary judgment response and the Court will consider them at that 27 time. The order the Court issued on May 2, 2025 merely addressed the procedure whereby the Court will go about answering the question the Ninth Circuit directed it to answer on 28 remand. Namely, the Court will allow Mr. Gage to conduct some limited addition discovery, and it will allow the parties to supplement their summary judgment briefing so 1 Third, Mr.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ian Gage, No. CV-19-02745-PHX-DLR
10 Plaintiff, ORDER
11 v.
12 Midwestern University,
13 Defendant. 14 15 16 At issue is Plaintiff Ian Gage’s motion for reconsideration of the Court’s May 2, 17 2025 order granting in part Mr. Gage’s motion to conduct additional discovery and to 18 supplement the evidentiary record. (Doc. 112.) Motions for reconsideration should be 19 granted only in rare circumstances. Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 20 1351 (D. Ariz. 1995). Mere disagreement with a previous order is an insufficient basis for 21 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 22 1988). “Reconsideration is appropriate if the district court (1) is presented with newly 23 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 24 or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah 25 Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LRCiv 7.2(g).1 Such
26 1 Mr. Gage cites to Federal Rules of Civil Procedure 59(e) and 60(a) and (b), but those rules do not apply in this context. Rule 59(e) governs motions to alter or amend a 27 judgment. The order Mr. Gage seeks reconsideration of did not enter a judgment. Rule 60(a) permits the Court to correct “clerical mistakes or mistakes arising from oversight or 28 omission.” Mr. Gage has not identified clerical errors or oversights, but instead takes issue with the Court’s substantive analysis. Finally, Rule 60(b) applies only to final judgments, 1 motions should not be used for the purpose of asking a court “‘to rethink what the court 2 had already thought through—rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 3 1351 (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. 4 Va. 1983)). 5 Mr. Gage does not present the Court with newly discovered evidence, nor does he 6 identify any changes in controlling law that have occurred in the time since the Court’s 7 order issued. Instead, Mr. Gage argues that the Court’s order was clearly erroneous. To be 8 clearly erroneous, a decision must be “more than just maybe or probably wrong; it must . . 9 . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” 10 Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988); see 11 also Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 502 (9th Cir. 1991). Mr. 12 Gage has not shown clear error. At most, Mr. Gage has registered his disagreement with 13 the Court’s ruling and urged the Court to rethink what it has already thought through. 14 First, Mr. Gage argues that the Court erred by stating that “he wished to supplement 15 the record with additional discovery material.” (Doc. 113 at 2.) The Court did not err. Pages 16 30-31 of the transcript of the telephonic conference held on January 14, 2025, reflects that 17 Mr. Gage wanted to supplement the record with materials that he believes are currently 18 missing from the record, including the results of a pulmonary function test (“PFT”) and 19 communications with Hartford Insurance. (Doc. 98 at 30-31.) Mr. Gage asked for other 20 relief as well, including discovery into allegations of fraud and spoliation of evidence. But 21 that does not change the fact that Mr. Gage also sought permission to conduct additional 22 discovery and supplement the record. The Court did not err in describing this portion of 23 Mr. Gage’s request. 24 Second, Mr. Gage argues that the Court erred by sua sponte scheduling a third 25 summary judgment motion “before new discovery could unfold and while evidentiary 26 disputes remain unresolved.” (Doc. 113 at 3.) The Court did not clearly err. The Ninth
27 orders, or proceedings. The order Mr. Gage seeks reconsideration of is not a judgment, nor is it a final (i.e., case dispositive) order. It instead is an interlocutory discovery and case 28 management order. As such, Mr. Gage’s motion for reconsideration is governed by Local Rule 7.2(g). 1 Circuit instructed the Court to consider whether the evidence in the record raises a genuine 2 dispute of material fact as to whether the symptoms of Mr. Gage’s formaldehyde sensitivity 3 and his respiratory impairments substantially limit a major life activity. (Doc. 97-1 at 2.) 4 That language corresponds to the summary judgment standard, which is to say the Ninth 5 Circuit remanded for the Court to reconsider whether Defendant Midwestern University 6 (“the University”) is entitled to summary judgment, or whether there is a genuine dispute 7 of material fact that requires a trial. To accomplish this, the Court is left with two options. 8 First, it can rely on the summary judgment briefing that has already taken place. Second, it 9 can allow the parties to supplement their summary judgment briefing. The Court chose the 10 second option, and it did not do so sua sponte—the University asked for permission to 11 supplement the summary judgment briefing. What’s more, the Court did so for a logical 12 reason. It had just granted Mr. Gage permission to supplement the record with the PFT and 13 to conduct some additional discovery that he contends was withheld earlier in the case. 14 Without supplemental summary judgment briefing, there would be no opportunity for Mr. 15 Gage to introduce this new evidence before the Court considers whether genuine disputes 16 of material fact exist. The Court ordered supplemental briefing so that Mr. Gage could have 17 a fair opportunity to supplement the record with any new, relevant evidence that he might 18 receive through the additional discovery the Court has authorized, and so the parties could 19 address such evidence. Mr. Gage’s contention that the Court ordered new briefing “before 20 new discovery could unfold” is demonstrably untrue. The Court’s order set the deadline 21 for supplemental briefing far enough out to permit Mr. Gage to serve and receive responses 22 to the additional discovery beforehand.2
23 2 Mr. Gage also makes merits arguments about the nature of his alleged disability, citing to 29 C.F.R. § 1910.1048 and UAW v. Pendergrass, 878 F.2d 389 (D.C. Cir. 1989). 24 Mr. Gage is free to raise these arguments again in his supplemental summary judgment response brief, and the Court will consider them at that time. Nothing in the Court’s May 25 2, 2025 order resolved those merits issues. The same is true regarding Mr. Gage’s objection to the use of what he describes as “HIPPA-stolen medical records.” (Doc. 113 at 4.) If Mr. 26 Gage has objections to the University’s summary judgment evidence, he may raise them in his supplemental summary judgment response and the Court will consider them at that 27 time. The order the Court issued on May 2, 2025 merely addressed the procedure whereby the Court will go about answering the question the Ninth Circuit directed it to answer on 28 remand. Namely, the Court will allow Mr. Gage to conduct some limited addition discovery, and it will allow the parties to supplement their summary judgment briefing so 1 Third, Mr. Gage notes that the Court ordered he “is entitled to all his statements and 2 communications with the University or any other person or entity that are in the 3 University’s possession and that pertain to this action or the subject matter involved in this 4 case,” but argues that he requested more that just his own statements.” (Doc. 113 at 4.) Mr. 5 Gage might disagree with the Court’s decision to grant him only part of what he asked for, 6 but mere disagreement is an insufficient basis for reconsideration. Mr. Gage has not shown 7 that the Court’s order was clearly erroneous. 8 Fourth, Mr. Gage argues that the Court erroneously ruled that the PFT was untimely 9 disclosed. (Doc. 113 at 4-5.) The Court disagrees, but this disagreement is immaterial 10 because the Court also found that the timing of the PFT disclosure was harmless, and that 11 Mr. Gage is free to supplement the record with the PFT, regardless of any timing issues. 12 The Court did not err by granting Mr. Gage what he asked for, namely, permission to 13 supplement the record with the PFT. 14 Fifth, Mr. Gage argues that the Court ignored his spoliation arguments. (Doc. 113 15 at 4-5.) This is demonstrably false. Pages 7-8 of the Court’s order contain a discussion of 16 Mr. Gage’s spoliation arguments and concludes that those arguments are too speculative 17 to justify spoliation-related discovery. (Doc. 112 at 7-8.) Mr. Gage might disagree with the 18 Court’s ruling, but mere disagreement is an insufficient basis for reconsideration. 19 Sixth, Mr. Gage argues that the Court erred by not requiring the University to 20 explain how it “gathered . . . discovery of EEOC Charge reports with UofA and his personal 21 nonpublic records held by them.” (Doc. 113 at 5.) The Court addressed the U of A records 22 in its order. Mr. Gage’s argument about how the University acquired these records is a 23 variation of his fraud and spoliation allegations, which likewise were addressed in the 24 order. Mr. Gage might disagree with the Court’s resolution of those issues, but he has not 25 shown clear error. 26 Seventh, Mr. Gage argues that the Court erred by “refus[ing] discovery or . . . 27 sanctions into” alleged acts of retaliation by the University. (Doc. 113 at 6.) Again, Mr.
28 that they can address and present the Court with any new, relevant evidence that results from this additional discovery. 1 Gage might disagree with the Court’s resolution of this issue, but he has not shown clear 2 error. The Court correctly noted that the sole remaining claim in this case is a claim of 3 disability-based discrimination, and that discovery would be limited to that claim. Mr. 4 Gage cites to 18 U.S.C. §§ 1512 and 1513, which are criminal statutes concerning witness 5 tampering and retaliation against witnesses, victims, or informants. (Id.) Mr. Gage is not a 6 federal prosecutor. He cannot bring criminal charges. This is a civil case under the 7 Americans with Disabilities Act. Mr. Gage also cites to 42 U.S.C. § 1985(2), which is 8 section of federal civil rights law imposing liability for conspiracies to violate civil rights. 9 But, once again, the sole claim in this case is a claim for disability-discrimination under 10 the ADA. The Court did not clearly err by limiting discovery to the sole claim at issue. 11 For these reasons, the Court denies Mr. Gage’s motion for reconsideration. To 12 summarize where this case stands procedurally, the Court has declined Mr. Gage’s request 13 for a stay of proceedings while he investigates allegations of fraud and spoliation of 14 evidence by the University. The Court addressed some of these fraud and spoliation 15 allegations in an order dated January 18, 2022 (Doc. 60), and found in its May 2 order that 16 Mr. Gage’s latest fraud and spoliation accusations are too speculative to justify discovery 17 into this collateral issue (Doc. 112 at 7-8). The Court has granted Mr. Gage permission to 18 supplement the evidentiary record with the PFT, and to conduct some limited additional 19 discovery that the Court deems potentially relevant to this claim. The Court’s May 2 order 20 details the discovery the Court has permitted, including deadlines for completing that 21 discovery. The Ninth Circuit has directed the Court to determine whether a genuine issue 22 of material fact exists for trial. To do this while also giving Mr. Gage an opportunity to 23 supplement the record with relevant evidence he might obtain through the additional 24 discovery the Court has authorized, the Court has set a schedule for supplemental summary 25 judgment briefing. If, after reviewing that briefing and the evidentiary record, the Court 26 determines that there is a genuine issue of material fact about whether Mr. Gage is disabled 27 within the meaning of the ADA, then the Court will set a date for trial at that time. 28 1 IT IS ORDERED that Mr. Gage’s motion for reconsideration (Doc. 113) is 2|| DENIED. 3 Dated this 7th day of May, 2025. 4 5 Lugs Ua 8 Son United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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