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6 BRAD KEARNS, et al., Case No. 3:24-cv-00060-MMD-CSD
7 Plaintiffs, ORDER v. 8 LIBERTY INSURANCE CORPORATION, 9 Defendant. 10 12 Plaintiffs Brad and Elizabeth Kearns sued their homeowners’ insurance company, 13 Defendant Liberty Insurance Corporation, for refusing to pay them for more than 12 14 months of loss of use coverage after a tree fell on their house in Stateline, Nevada. (ECF 15 No. 1 (“Complaint”).) Before the Court is Plaintiffs’ motion for reconsideration of the 16 portion of the Court’s prior order in which the Court found Defendant did not breach the 17 pertinent insurance contract.1 (ECF No. 21 (“Motion”).) As further explained below— 18 subject to one clarification—because the Court does not find Plaintiffs have met the 19 reconsideration standard or otherwise convinced the Court that the challenged portion of 20 its prior order was incorrectly decided, the Court will deny the Motion. 22 Because Defendant raised it in its motion to dismiss, the Court addressed the 23 argument that Defendant did not breach the insurance policy between Plaintiffs and 24 Defendant and ruled that Defendant did not breach it. (ECF No. 20 at 5-8.) Plaintiffs were 25 aware that Defendant was making this argument and responded to it. (Id. at 5 (noting 26 Plaintiffs’ argument that Defendant breached the contract).) In other words, the parties 27 asked the Court to interpret the policy, and the Court did, but reached an interpretation 28 11 unfavorable to Plaintiffs. Plaintiffs now seek reconsideration of that unfavorable decision, 22 arguing that the Court “made several clear errors of the law in its interpretation of the 33 insurance policy issued to Plaintiffs.” (ECF No. 21 at 2.) Defendants generally counter 44 that Plaintiffs’ Motion does not satisfy the reconsideration standard because it primarily 55 consists of arguments that Plaintiffs either did raise, or could reasonably have raised, in 66 response to their motion to dismiss. (ECF No. 24 at 1.) The Court generally agrees with 77 Defendants. 88 A motion to reconsider must set forth “some valid reason why the court should 99 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 1100 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 1111 2d 1180, 1183 (D. Nev. 2003) (citation omitted). Reconsideration is appropriate if this 1122 Court “(1) is presented with newly discovered evidence, (2) committed clear error or the 1133 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 1144 law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation 1155 omitted). But “[a] motion for reconsideration is not an avenue to re-litigate the same issues 1166 and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 1177 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (citation omitted). And while motions to 1188 reconsider are generally left to the discretion of the district court, see Herbst v. Cook, 260 1199 F.3d 1039, 1044 (9th Cir. 2001), the Court retains discretion not to consider arguments 2200 that were not raised until a motion for reconsideration without a good excuse for the delay. 2211 See Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995); N.W. Acceptance 2222 Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). 2233 As Defendant points out in its response, Plaintiffs reiterate some arguments in their 2244 Motion and make a few new ones. (ECF No. 24.) But as to the new arguments, Plaintiffs 2255 do not offer any explanation as to why they waited until the Motion to raise them. (ECF 2266 2277 2288 11 No. 21.)2 The Court accordingly exercises its discretion not to further consider Plaintiffs’ 22 arguments regarding the header that mentions an increase, their preferred sequential 33 reading of the policy, and the priority of state-specific endorsements over general 44 endorsements. See Kona Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 55 2000) (“A Rule 59(e) motion may not be used to raise arguments or present evidence for 66 the first time when they could reasonably have been raised earlier in the litigation.”). 77 Plaintiff could have reasonably raised those arguments earlier in this litigation and offer 88 no persuasive explanation for why they failed to. 99 As to Plaintiffs’ argument that the policy contains inconsistent endorsements 1100 creating ambiguity (ECF No. 21 at 16-18), Plaintiffs made materially the same argument 1111 in response to the motion to dismiss (ECF No. 15 at 17-22). But “[a] motion for 1122 reconsideration is not an avenue to re-litigate the same issues and arguments upon which 1133 the court already has ruled.” Brown, 378 F. Supp. 2d at 1288. 1144 In general, having read and considered the Motion, and re-read the Policy, the 1155 Court continues to find that the policy unambiguously provides for only 12 months of loss 1166 of use benefits for the reasons the Court provided in its prior order. (ECF No. 20 at 5-8.) 1177 The Court also notes that Plaintiffs’ Motion is unpersuasive because they present no 1188 binding precedent in it that directly and specifically supports any of their arguments. 1199 Plaintiffs cite only five reported opinions of the United States Court of Appeals for the 2200 Ninth Circuit, but only cite them for general, uncontroversial—but insufficiently specific— 2211 propositions. (ECF No. 21 at 6-7, 18.) The lack of pertinent binding precedent suggests 2222 that any errors the Court purportedly made are not as clear as Plaintiffs argue they are in 2233 2244 2Plaintiffs offer somewhat of an explanation in reply—that Defendant did not 2255 devote many pages to its breach of contract argument. (ECF No. 25 at 2.) But the number of pages a party devotes to an argument does not determine the legal impact of the 2266 argument, or whether a response is merited. And as mentioned above, Plaintiff responded to Defendant’s argument that it did not breach the contract in response to the motion to 2277 dismiss, offering several arguments—just not all the arguments offered in the Motion. Plaintiffs accordingly do not adequately explain why they waited until filing the Motion to 2288 raise certain arguments. 11 their Motion. 22 However, Plaintiffs correctly point out that the Court erred when it wrote in its prior 33 order, “[w]hatever the ‘Loss of Use’ section of the Declaration provided, the Policy plainly 44 specifies that it was deleted and replaced by what follows.” (ECF Nos. 21 at 8-11 (making 55 the argument), 20 at 6-7 (including the incorrect sentence).) The Court meant to state— 66 and indeed did state at the beginning of that same paragraph—that the Nevada-specific 77 endorsement deleted and replaced the Coverage D – Loss of Use section of the policy, 88 not the Declaration. (ECF No. 20 at 6.) The Court accordingly clarifies that the Nevada- 99 specific endorsement did not delete the Declaration. The Nevada-specific endorsement, 1100 per its plain language, deleted the Coverage D – Loss of Use section of the policy. (See 1111 ECF No. 21-1 at 32 (this is the section that was deleted), 52 (stating the other section is 1122 deleted and replaced by what follows).) But the Court otherwise stands by its analysis in 1133 the Prior Order—the Nevada-specific endorsement replaced the Loss of Use section in 1144 the policy, and then the Homeprotector Plus endorsement further modified the Nevada- 1155 specific loss of use section of the policy. (ECF No. 20 at 6-8.) 1166 In sum, the parties asked the Court to interpret the policy, and the Court did.
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6 BRAD KEARNS, et al., Case No. 3:24-cv-00060-MMD-CSD
7 Plaintiffs, ORDER v. 8 LIBERTY INSURANCE CORPORATION, 9 Defendant. 10 12 Plaintiffs Brad and Elizabeth Kearns sued their homeowners’ insurance company, 13 Defendant Liberty Insurance Corporation, for refusing to pay them for more than 12 14 months of loss of use coverage after a tree fell on their house in Stateline, Nevada. (ECF 15 No. 1 (“Complaint”).) Before the Court is Plaintiffs’ motion for reconsideration of the 16 portion of the Court’s prior order in which the Court found Defendant did not breach the 17 pertinent insurance contract.1 (ECF No. 21 (“Motion”).) As further explained below— 18 subject to one clarification—because the Court does not find Plaintiffs have met the 19 reconsideration standard or otherwise convinced the Court that the challenged portion of 20 its prior order was incorrectly decided, the Court will deny the Motion. 22 Because Defendant raised it in its motion to dismiss, the Court addressed the 23 argument that Defendant did not breach the insurance policy between Plaintiffs and 24 Defendant and ruled that Defendant did not breach it. (ECF No. 20 at 5-8.) Plaintiffs were 25 aware that Defendant was making this argument and responded to it. (Id. at 5 (noting 26 Plaintiffs’ argument that Defendant breached the contract).) In other words, the parties 27 asked the Court to interpret the policy, and the Court did, but reached an interpretation 28 11 unfavorable to Plaintiffs. Plaintiffs now seek reconsideration of that unfavorable decision, 22 arguing that the Court “made several clear errors of the law in its interpretation of the 33 insurance policy issued to Plaintiffs.” (ECF No. 21 at 2.) Defendants generally counter 44 that Plaintiffs’ Motion does not satisfy the reconsideration standard because it primarily 55 consists of arguments that Plaintiffs either did raise, or could reasonably have raised, in 66 response to their motion to dismiss. (ECF No. 24 at 1.) The Court generally agrees with 77 Defendants. 88 A motion to reconsider must set forth “some valid reason why the court should 99 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 1100 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 1111 2d 1180, 1183 (D. Nev. 2003) (citation omitted). Reconsideration is appropriate if this 1122 Court “(1) is presented with newly discovered evidence, (2) committed clear error or the 1133 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 1144 law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation 1155 omitted). But “[a] motion for reconsideration is not an avenue to re-litigate the same issues 1166 and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 1177 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (citation omitted). And while motions to 1188 reconsider are generally left to the discretion of the district court, see Herbst v. Cook, 260 1199 F.3d 1039, 1044 (9th Cir. 2001), the Court retains discretion not to consider arguments 2200 that were not raised until a motion for reconsideration without a good excuse for the delay. 2211 See Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995); N.W. Acceptance 2222 Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). 2233 As Defendant points out in its response, Plaintiffs reiterate some arguments in their 2244 Motion and make a few new ones. (ECF No. 24.) But as to the new arguments, Plaintiffs 2255 do not offer any explanation as to why they waited until the Motion to raise them. (ECF 2266 2277 2288 11 No. 21.)2 The Court accordingly exercises its discretion not to further consider Plaintiffs’ 22 arguments regarding the header that mentions an increase, their preferred sequential 33 reading of the policy, and the priority of state-specific endorsements over general 44 endorsements. See Kona Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 55 2000) (“A Rule 59(e) motion may not be used to raise arguments or present evidence for 66 the first time when they could reasonably have been raised earlier in the litigation.”). 77 Plaintiff could have reasonably raised those arguments earlier in this litigation and offer 88 no persuasive explanation for why they failed to. 99 As to Plaintiffs’ argument that the policy contains inconsistent endorsements 1100 creating ambiguity (ECF No. 21 at 16-18), Plaintiffs made materially the same argument 1111 in response to the motion to dismiss (ECF No. 15 at 17-22). But “[a] motion for 1122 reconsideration is not an avenue to re-litigate the same issues and arguments upon which 1133 the court already has ruled.” Brown, 378 F. Supp. 2d at 1288. 1144 In general, having read and considered the Motion, and re-read the Policy, the 1155 Court continues to find that the policy unambiguously provides for only 12 months of loss 1166 of use benefits for the reasons the Court provided in its prior order. (ECF No. 20 at 5-8.) 1177 The Court also notes that Plaintiffs’ Motion is unpersuasive because they present no 1188 binding precedent in it that directly and specifically supports any of their arguments. 1199 Plaintiffs cite only five reported opinions of the United States Court of Appeals for the 2200 Ninth Circuit, but only cite them for general, uncontroversial—but insufficiently specific— 2211 propositions. (ECF No. 21 at 6-7, 18.) The lack of pertinent binding precedent suggests 2222 that any errors the Court purportedly made are not as clear as Plaintiffs argue they are in 2233 2244 2Plaintiffs offer somewhat of an explanation in reply—that Defendant did not 2255 devote many pages to its breach of contract argument. (ECF No. 25 at 2.) But the number of pages a party devotes to an argument does not determine the legal impact of the 2266 argument, or whether a response is merited. And as mentioned above, Plaintiff responded to Defendant’s argument that it did not breach the contract in response to the motion to 2277 dismiss, offering several arguments—just not all the arguments offered in the Motion. Plaintiffs accordingly do not adequately explain why they waited until filing the Motion to 2288 raise certain arguments. 11 their Motion. 22 However, Plaintiffs correctly point out that the Court erred when it wrote in its prior 33 order, “[w]hatever the ‘Loss of Use’ section of the Declaration provided, the Policy plainly 44 specifies that it was deleted and replaced by what follows.” (ECF Nos. 21 at 8-11 (making 55 the argument), 20 at 6-7 (including the incorrect sentence).) The Court meant to state— 66 and indeed did state at the beginning of that same paragraph—that the Nevada-specific 77 endorsement deleted and replaced the Coverage D – Loss of Use section of the policy, 88 not the Declaration. (ECF No. 20 at 6.) The Court accordingly clarifies that the Nevada- 99 specific endorsement did not delete the Declaration. The Nevada-specific endorsement, 1100 per its plain language, deleted the Coverage D – Loss of Use section of the policy. (See 1111 ECF No. 21-1 at 32 (this is the section that was deleted), 52 (stating the other section is 1122 deleted and replaced by what follows).) But the Court otherwise stands by its analysis in 1133 the Prior Order—the Nevada-specific endorsement replaced the Loss of Use section in 1144 the policy, and then the Homeprotector Plus endorsement further modified the Nevada- 1155 specific loss of use section of the policy. (ECF No. 20 at 6-8.) 1166 In sum, the parties asked the Court to interpret the policy, and the Court did. 1177 Subject to the one error identified and corrected above, the Court stands by its 1188 interpretation. Plaintiffs disagree with the Court’s interpretation. But reconsideration is not 1199 the appropriate avenue for Plaintiffs to voice their disagreement. Plaintiffs’ remedy is 2200 appeal after this case reaches final judgment. See WMX Techs., Inc. v. Miller, 104 F.3d 2211 1133, 1136-37 (9th Cir. 1997) (“However, when a district court expressly grants leave to 2222 amend, it is plain that the order is not final.”) (emphasis in original). 2233 To that end, the Court reminds Plaintiffs that it granted them leave to amend two 2244 of their other claims (ECF No. 20 at 8-11 (granting leave to amend as to two claims))— 2255 but not their breach of contract claim (id. at 8)—so, as further specified below, the Court 2266 will give them another 30 days to file an amended complaint consistent with the Court’s 2277 prior order if they wish. Plaintiffs do not need to include their breach of contract claim in 2288 11 any amended complaint to preserve their ability to appeal the Court’s decision dismissing 22 only that claim with prejudice. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 33 2012). Indeed, Plaintiffs may not include a breach of contract claim in any amended 44 complaint because the Court dismissed it with prejudice. (ECF No. 20 at 8.) And if 55 Plaintiffs do not wish to file an amended complaint, they must file a notice of intent not to 66 file one within 30 days. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 77 2004) (“a plaintiff may obtain an appealable final judgment by ‘fil[ing] in writing a notice of 88 intent not to file an amended complaint.”’) (citation omitted). 1100 The Court notes that the parties made several arguments and cited to several 1111 cases not discussed above. The Court has reviewed these arguments and cases and 1122 determines that they do not warrant discussion as they do not affect the outcome of the 1133 Motion before the Court. 1144 It is therefore ordered that Plaintiffs’ motion for reconsideration (ECF No. 21) is 1155 denied. 1166 It is further ordered that, because the Court previously granted Plaintiffs leave to 1177 amend two of their claims within 30 days, and that deadline passed while Plaintiffs 1188 awaited a decision on their motion for reconsideration, Plaintiffs must file any amended 1199 complaint consistent with the Court’s prior order (ECF No. 20 at 8-11 (granting leave to 2200 amend as to two claims)) within 30 days of the date of entry of this order. 2211 It is further ordered that, if Plaintiffs do not wish to file an amended complaint, they 2222 must file a notice of their intent not to file one within 30 days. Upon receipt of such a 2233 notice, the Court will issue another order resolving this case. 2244 /// 2255 /// 2266 /// 2277 /// 2288 1 If Plaintiffs do not timely file either an amended complaint or a notice of intent not 2 || to file one as specified herein, the Court will dismiss this case, with prejudice, and without 3 || further advance notice to Plaintiffs. 4 DATED THIS 30" Day of May 2024.
6 □□ MIRANDA M. DU 7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28