1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * *
5 KIM BERNADETTE JACQUES, Case No. 2:20-cv-00079-RFB-DJA
6 Plaintiff, ORDER
7 v.
8 ALBERTSON’S LLC,
9 Defendant.
10 11 I. INTRODUCTION 12 Before the Court is Plaintiff Kim Bernadette Jacques’ Motion for Reconsideration of the 13 Court’s Order entered on September 29, 2024 (ECF Nos. 236, 237).1 For the following reasons, 14 Plaintiff’s motion is denied. 15 II. BACKGROUND 16 The Court incorporates the procedural and factual background sections herein from its prior 17 Order, ECF No. 235, and adds the following: On September 29, 2024, the Court entered an Order 18 inter alia granting Defendant Albertson’s’ Motion for Rule 37 Sanctions. ECF No. 235. In its 19 Order, the Court held that Ms. Jacques violated Rule 26(a) and 26(e) by failing to timely disclose 20 the names of medical providers that she intended to call at trial. Finding no evidence that the 21 violation was substantially justified or harmless, the Court therefore excluded all testimony and 22 evidence from these providers pursuant to Rule 37. Consequently, the Court found that the 23 exclusion amounted to dismissal of the action, for Ms. Jacques would have been unable to establish 24
25 1 The Court recognizes Ms. Jacques filed two motions in response to the Court’s Order. 26 Based on the substance and context of her arguments, the Court construes both motions as a Motion for Reconsideration of the Court’s Order dismissing this action. See City of Los Angeles v. Santa 27 Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (a district court possesses an inherent procedural power to reconsider, rescind, or modify an order); see also Local Rule 59-1(a). 28 Therefore, the Court addresses these motions jointly as a single motion for reconsideration. Nevertheless, the Court considers the arguments offered by Plaintiff in both of these motions. 1 an essential element of her negligence claim without the medical testimony. On September 30 and 2 October 7, 2024, Plaintiff filed the instant motions. ECF Nos. 236, 237. Defendant Albertson’s 3 filed responses on October 14, 2024. ECF Nos. 238, 239, 240. The Court’s Order follows. 4 III. LEGAL STANDARD 5 The Court has discretion to grant or deny a motion for reconsideration. Navajo Nation v. 6 Norris, 331 F.3d 1041, 1046 (9th Cir. 2003). A district court may grant a motion for 7 reconsideration only where: (1) it is presented with newly discovered evidence; (2) it has 8 committed clear error or the initial decision was manifestly unjust; or (3) there has been an 9 intervening change in controlling law. Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004); Kona 10 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration 11 “may not be used to raise arguments or present evidence for the first time when they could 12 reasonably have been raised earlier in the litigation.” Kona, 229 F.3d at 890. “A party seeking 13 reconsideration . . . must state with particularity the points of law or fact that the court has 14 overlooked or misunderstood. Changes in legal or factual circumstances that may entitle the 15 movant to relief also must be stated with particularity.” L.R. 59-1. These motions are disfavored. 16 Local Rule 59-1(b). 17 IV. DISCUSSION 18 Plaintiff’s motions argue that the Court has committed clear error and its ruling was 19 manifestly unjust. First, Plaintiff argues that the Court wrongly concluded that Ms. Jacques failed 20 to timely disclose her medical providers. She argues that she disclosed these medical providers in 21 2019 state court filings before this action was removed. Additionally, she argues that evidence of 22 disclosure was included in over 1,900 pages of evidence served on defense counsel, but not 23 reviewed by the Court. Lastly, Ms. Jacques states that the Court rejected her submission of voice 24 mail recordings that confirmed all evidence was provided to Defendant. Beyond these references, 25 Ms. Jacques simply concludes that she disclosed her experts “four” different times. 26 As an initial matter, these arguments are the same as those previously presented in support 27 of her disclosure. See ECF Nos. 222, 225, 228. Motions for reconsideration may not be granted 28 where the movant simply repeats the arguments presented during the underlying motion. See 1 Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (“The motion [for reconsideration] was 2 properly denied here because. . . it presented no arguments that had not already been raised[.]”); 3 see also Glavor v. Shearson Lehman Hutton, Inc., 879 F. Supp. 1028, 1033 (N.D. Cal. 1994) (“In 4 order for a party to demonstrate clear error, the moving party’s arguments cannot be the same as 5 those made earlier.”). 6 Even if the Court were to consider these arguments anew, nothing on the record indicates 7 that the medical providers were timely disclosed. The Court previously granted Ms. Jacques an 8 opportunity to file any evidence suggesting the experts were provided to Defendant during a May 9 6, 2024, hearing. Ms. Jacques failed to do. Even in these motions, Ms. Jacques does not point to a 10 docket number in the state court filings reflecting the disclosures, nor does she indicate on what 11 page of the 1,900 pages of evidence indicate the experts she plans to call for testimony. Moreover, 12 even if Plaintiff submitted evidence reflecting that she did disclose the providers in the state court 13 filings or 1,900-page box, these filings are not sufficient under the rules governing discovery. See 14 Fed. R. Civ. P. 26(a)(2)(A) (mandating that a party disclose the identity of experts to the other 15 party); see also Fed. R. Civ. P. 26(a)(2)(B), (C) (describing what must be contained in expert 16 disclosures). Finally, Plaintiff protests that the Court did not require Defendant to prove that it 17 never received the disclosure. However, as it is Plaintiff’s duty to adequately disclose experts 18 under Rule 26, it is Plaintiff’s burden to demonstrate compliance with the rule. The Court does not 19 find clear error or manifest injustice in its ruling that Ms. Jacques failed to adequately disclose the 20 medical experts. 21 Next, Plaintiff appears to argue that the Court wrongly concluded that the Rule 37 sanction 22 warranted dismissal of the case. Effectively, Ms. Jacques argues that since the injuries caused from 23 her fall are apparent, she could prove her negligence claim. For example, she emphasizes the 24 immediate injuries resulting from her fall, including a seizure, unconsciousness, and the 25 emergency unit’s diagnoses. She describes various lasting injuries, stating that she would not have 26 seen any doctors or specialists but for her injury. Ultimately, she concludes, “[t]here is no practical 27 way in which [Ms. Jacques] could be clearer about the damages” incurred from her fall. 28 In its previous Order, the Court already considered whether Ms. Jacques’ injuries required 1 medical experts to prove causation from the slip and fall. Ms. Jacques offers no new argument 2 here. See Maraziti, 52 F.3d at 255. The Court nonetheless reconsiders its analysis and affirms that 3 Plaintiff’s injuries are complex enough to necessitate expert testimony. In just the instant motions, 4 Ms.
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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * *
5 KIM BERNADETTE JACQUES, Case No. 2:20-cv-00079-RFB-DJA
6 Plaintiff, ORDER
7 v.
8 ALBERTSON’S LLC,
9 Defendant.
10 11 I. INTRODUCTION 12 Before the Court is Plaintiff Kim Bernadette Jacques’ Motion for Reconsideration of the 13 Court’s Order entered on September 29, 2024 (ECF Nos. 236, 237).1 For the following reasons, 14 Plaintiff’s motion is denied. 15 II. BACKGROUND 16 The Court incorporates the procedural and factual background sections herein from its prior 17 Order, ECF No. 235, and adds the following: On September 29, 2024, the Court entered an Order 18 inter alia granting Defendant Albertson’s’ Motion for Rule 37 Sanctions. ECF No. 235. In its 19 Order, the Court held that Ms. Jacques violated Rule 26(a) and 26(e) by failing to timely disclose 20 the names of medical providers that she intended to call at trial. Finding no evidence that the 21 violation was substantially justified or harmless, the Court therefore excluded all testimony and 22 evidence from these providers pursuant to Rule 37. Consequently, the Court found that the 23 exclusion amounted to dismissal of the action, for Ms. Jacques would have been unable to establish 24
25 1 The Court recognizes Ms. Jacques filed two motions in response to the Court’s Order. 26 Based on the substance and context of her arguments, the Court construes both motions as a Motion for Reconsideration of the Court’s Order dismissing this action. See City of Los Angeles v. Santa 27 Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (a district court possesses an inherent procedural power to reconsider, rescind, or modify an order); see also Local Rule 59-1(a). 28 Therefore, the Court addresses these motions jointly as a single motion for reconsideration. Nevertheless, the Court considers the arguments offered by Plaintiff in both of these motions. 1 an essential element of her negligence claim without the medical testimony. On September 30 and 2 October 7, 2024, Plaintiff filed the instant motions. ECF Nos. 236, 237. Defendant Albertson’s 3 filed responses on October 14, 2024. ECF Nos. 238, 239, 240. The Court’s Order follows. 4 III. LEGAL STANDARD 5 The Court has discretion to grant or deny a motion for reconsideration. Navajo Nation v. 6 Norris, 331 F.3d 1041, 1046 (9th Cir. 2003). A district court may grant a motion for 7 reconsideration only where: (1) it is presented with newly discovered evidence; (2) it has 8 committed clear error or the initial decision was manifestly unjust; or (3) there has been an 9 intervening change in controlling law. Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004); Kona 10 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration 11 “may not be used to raise arguments or present evidence for the first time when they could 12 reasonably have been raised earlier in the litigation.” Kona, 229 F.3d at 890. “A party seeking 13 reconsideration . . . must state with particularity the points of law or fact that the court has 14 overlooked or misunderstood. Changes in legal or factual circumstances that may entitle the 15 movant to relief also must be stated with particularity.” L.R. 59-1. These motions are disfavored. 16 Local Rule 59-1(b). 17 IV. DISCUSSION 18 Plaintiff’s motions argue that the Court has committed clear error and its ruling was 19 manifestly unjust. First, Plaintiff argues that the Court wrongly concluded that Ms. Jacques failed 20 to timely disclose her medical providers. She argues that she disclosed these medical providers in 21 2019 state court filings before this action was removed. Additionally, she argues that evidence of 22 disclosure was included in over 1,900 pages of evidence served on defense counsel, but not 23 reviewed by the Court. Lastly, Ms. Jacques states that the Court rejected her submission of voice 24 mail recordings that confirmed all evidence was provided to Defendant. Beyond these references, 25 Ms. Jacques simply concludes that she disclosed her experts “four” different times. 26 As an initial matter, these arguments are the same as those previously presented in support 27 of her disclosure. See ECF Nos. 222, 225, 228. Motions for reconsideration may not be granted 28 where the movant simply repeats the arguments presented during the underlying motion. See 1 Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (“The motion [for reconsideration] was 2 properly denied here because. . . it presented no arguments that had not already been raised[.]”); 3 see also Glavor v. Shearson Lehman Hutton, Inc., 879 F. Supp. 1028, 1033 (N.D. Cal. 1994) (“In 4 order for a party to demonstrate clear error, the moving party’s arguments cannot be the same as 5 those made earlier.”). 6 Even if the Court were to consider these arguments anew, nothing on the record indicates 7 that the medical providers were timely disclosed. The Court previously granted Ms. Jacques an 8 opportunity to file any evidence suggesting the experts were provided to Defendant during a May 9 6, 2024, hearing. Ms. Jacques failed to do. Even in these motions, Ms. Jacques does not point to a 10 docket number in the state court filings reflecting the disclosures, nor does she indicate on what 11 page of the 1,900 pages of evidence indicate the experts she plans to call for testimony. Moreover, 12 even if Plaintiff submitted evidence reflecting that she did disclose the providers in the state court 13 filings or 1,900-page box, these filings are not sufficient under the rules governing discovery. See 14 Fed. R. Civ. P. 26(a)(2)(A) (mandating that a party disclose the identity of experts to the other 15 party); see also Fed. R. Civ. P. 26(a)(2)(B), (C) (describing what must be contained in expert 16 disclosures). Finally, Plaintiff protests that the Court did not require Defendant to prove that it 17 never received the disclosure. However, as it is Plaintiff’s duty to adequately disclose experts 18 under Rule 26, it is Plaintiff’s burden to demonstrate compliance with the rule. The Court does not 19 find clear error or manifest injustice in its ruling that Ms. Jacques failed to adequately disclose the 20 medical experts. 21 Next, Plaintiff appears to argue that the Court wrongly concluded that the Rule 37 sanction 22 warranted dismissal of the case. Effectively, Ms. Jacques argues that since the injuries caused from 23 her fall are apparent, she could prove her negligence claim. For example, she emphasizes the 24 immediate injuries resulting from her fall, including a seizure, unconsciousness, and the 25 emergency unit’s diagnoses. She describes various lasting injuries, stating that she would not have 26 seen any doctors or specialists but for her injury. Ultimately, she concludes, “[t]here is no practical 27 way in which [Ms. Jacques] could be clearer about the damages” incurred from her fall. 28 In its previous Order, the Court already considered whether Ms. Jacques’ injuries required 1 medical experts to prove causation from the slip and fall. Ms. Jacques offers no new argument 2 here. See Maraziti, 52 F.3d at 255. The Court nonetheless reconsiders its analysis and affirms that 3 Plaintiff’s injuries are complex enough to necessitate expert testimony. In just the instant motions, 4 Ms. Jacques alleges injuries to her brain, back, spine, neck, shoulders, and mental health resulting 5 from the fall seven years ago. While the Court does not deny Ms. Jacques suffers from these 6 injuries, the Court finds that they are beyond the common knowledge of a layperson. An expert is 7 required when “the cause of the injuries is not immediately apparent” or the injury “may have 8 many causes,” but not when the connection “would be obvious to laymen.” Scolaro v. Vons Co. 9 Inc., No. 2:17-cv-01979, 2019 U.S. Dist. LEXIS 221547, at *21 (D. Nev. Dec. 27, 2019); see also 10 Lord v. State, 806 P.2d 548, 551 (Nev. 1991) (“When the cause of injuries is not immediately 11 apparent, the opinion as to the cause should be given by one qualified as a medical expert.”). The 12 Court therefore finds that, were Plaintiff’s negligence claim to proceed without expert testimony, 13 it would be built upon “the gossamer threads of whimsy, speculation, and conjecture.” Wood v. 14 Safeway, Inc., 121 P.3d 1026, 1031 (Nev. 2005). The Court does not find clear error or manifest 15 injustice in its ruling on dismissal resulting from Rule 37 sanctions. 16 Lastly, the Court considers those arguments that do not directly address the Court’s ruling 17 on the motion for Rule 37 sanctions. Referencing evidence in support of Defendant’s negligence 18 (e.g., photographs, sweep logs, witness statements, etc.), Ms. Jacques argues that dismissal of this 19 action “ignore[s] the truth of [her] claims and injuries[.]” While there is a strong public policy in 20 favor of disposing cases on their merits, rather than procedural shortcomings, the Court must weigh 21 this factor against the significant prejudice to the defendant and the unavailability of less drastic 22 sanctions. See Wendt v. Host. Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997) (concluding that where 23 an exclusionary sanction amounts to dismissal, the court must undertake a five-factor analysis). 24 As the Court reasoned, disposition on the merits is in fact outweighed by these factors. The Court 25 finds no clear error or manifest injustice in the prior holding that the sanctions imposed amounted 26 to dismissal. 27 Plaintiff also raises issues with various procedural decisions made by the Court since the 28 beginning of the action. For example, Plaintiff protests inter alia rulings on motions to compel, 1 interrogatories, and default judgments. A motion for reconsideration “may not be used to relitigate 2 old matters[.]” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008). Nor may it be used 3 “to raise arguments or present evidence for the first time when they could reasonably have been 4 raised earlier in the litigation.” Kona, 229 F.3d at 890. Accordingly, the Court will not reconsider 5 rulings that could reasonably have been objected to by Plaintiff within the time they were decided. 6 Even if the Court were to consider those arguments, they are mooted by the Court’s disposal of 7 the case in its September 30, 2024, Order. 8 Plaintiff’s remaining arguments are immaterial to either the Court’s recent Order or 9 dismissal generally. For the foregoing reasons, the Plaintiff’s motion is denied. 10 V. CONCLUSION 11 IT IS THEREFORE ORDERED that Plaintiff’s Motions for Reconsideration (ECF Nos. 12 236, 237) are DENIED. 13 The Clerk of the Court is instructed to enter judgment accordingly. 14 15 DATED: January 3, 2025 16 __________________________________ 17 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28