Jalowsky v. Provident Life and Accident Insurance Company

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Herbert Jalowsky, M.D., an individual, ) No. CV 18-279-TUC-CKJ (LAB) 9 ) Plaintiff, ) ORDER 10 ) vs. ) 11 ) ) 12 Provident Life and Accident Insurance) Co., a Tennessee corporation; Unum) 13 Group, a Delaware corporation, ) ) 14 Defendants. ) ) 15 _________________________________) 16 Pending before the court is the defendants’ motion, filed on August 28, 2020, for 17 reconsideration of this court’s prior order granting, in part, the defendants’ motion to compel 18 discovery or, in the alternative, to preclude the plaintiff, Jalowsky, from introducing pain- 19 related evidence at trial. (Doc. 414) 20 Previously, on August 17, 2020, this court granted, in part, the defendants’ motion to 21 compel discovery from the plaintiff seeking to ascertain his level of physical activity. (Doc. 22 405) The court held that Jalowsky must provide some of the requested discovery, but not all, 23 because for some of the discovery requests, “the burden or expense of the proposed discovery 24 outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1); (Doc. 405) The defendants argue in 25 the pending motion that this court was wrong to conclude that the issue of pain was 26 “peripheral.” (Doc. 414, p. 1) On the contrary, they argue, it is “a central issue in this 27 action.” Id. 28 1 2 Discussion 3 A motion for reconsideration is appropriate where “the district court (1) is presented 4 with newly discovered evidence [that could not have been presented earlier with reasonable 5 diligence], (2) committed clear error or the initial decision was manifestly unjust, or (3) if 6 there is an intervening change in controlling law.” School Dist. No. 1J,Multnomah County 7 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LRCiv 7.2(g) (“The Court will 8 ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error 9 or a showing of new facts or legal authority that could not have been brought to its attention 10 earlier with reasonable diligence.”). A motion for reconsideration should not be used for the 11 purpose of asking a court “to rethink what the court had already thought through – rightly or 12 wrongly.” Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D.Ariz. 1995) 13 (punctuation modified). A motion for reconsideration “may not be used to raise arguments 14 or present evidence for the first time when they could reasonably have been raised earlier in 15 the litigation.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) 16 (emphasis in original). Nor may a motion for reconsideration repeat any argument previously 17 made in support of or in opposition to a motion. Motorola, Inc. v. J.B. Rodgers Mech. 18 Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003); LRCiv 7.2(g)(1). Mere 19 disagreement with a previous order is an insufficient basis for reconsideration. See Leong 20 v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). 21 The defendants argue that “it is manifestly unjust to allow Plaintiff to pursue the 22 theory that the car accident aggravated his chronic pain and therefore contributes to his MCI, 23 but not to require Plaintiff to answer discovery related to that theory.” (Doc. 414, p. 6) This 24 court, however, has required Plaintiff to answer discovery related to that theory. (Doc. 405) 25 It has denied additional discovery because “the burden or expense of the proposed discovery 26 outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1); (Doc. 405) The pending motion asks 27 the court to rethink something that it has already thought through. Accordingly, 28 2 3 IT IS ORDERED that the defendants’ motion, filed on August 28, 2020, for 4 || reconsideration of this court’s prior order granting, in part, the defendants’ motion to compel 5 || discovery or, in the alternative, to preclude the plaintiff, Jalowsky, from introducing pain- 6 || related evidence at trial is DENIED. (Doc. 414) The motion for reconsideration is DENIED. 7 || The motion to preclude evidence at trial is DENIED as UNRIPE. The District Court will set 8 || a schedule for filing motions in limine when the trial date is set. 10 DATED this 10" day of September, 2020. 11 12 13 . 14 Reobs. ( i. B Trey Leslie A. Bowman 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-