1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 David L. Kurtz, et al., No. CV-19-00152-PHX-GMS
10 Plaintiffs, ORDER
11 v.
12 Goodyear Tire & Rubber Company,
13 Defendant. 14 15 Pending before the Court is Plaintiffs’ Motion to Reconsider. (Doc. 37.) The Court 16 denies the motion. The Court also denies Plaintiffs’ Motion to File Reply Memorandum to 17 Defendant Goodyear’s Response in Opposition to Plaintiffs’ Motion for Reconsideration 18 (Doc. 43) as moot. 19 BACKGROUND 20 In 2005 Plaintiff David Kurtz filed his first lawsuit against Defendant Goodyear 21 Tire & Rubber Company (“Goodyear”) on behalf of his clients, the Haeger family. 22 (“Haeger I”.) That case settled in 2010. However, Kurtz subsequently discovered that 23 Goodyear had not disclosed certain test results during discovery. Consequently, the Haeger 24 I court issued an order encouraging plaintiffs in that action to file a separate lawsuit dealing 25 with the alleged discovery misconduct in the case. In May 2013, Kurtz filed a second 26 lawsuit on behalf of the Haegers against Goodyear, alleging abuse of process and fraud. 27 (“Haeger II”.) The complaint requested damages that would make up the difference 28 between the settlement offer accepted in Haeger I and the true value of the claims with the 1 newly discovered material. 2 In the case underlying this reconsideration motion, filed in 2018, Kurtz brought 3 several claims on his own behalf, including two claims under the Racketeer Influenced and 4 Corrupt Organizations Act (RICO), three fraud claims, and individual claims for abuse of 5 process, aiding and abetting, and intentional interference with business expectancy. 6 Although the misconduct underlying these claims was the same as the alleged misconduct 7 underlying the Haeger II suit, Kurtz’s claims in this suit were slightly different. Instead of 8 claiming the difference between the settlement offer and true value of the claims, Kurtz 9 claimed he was entitled to compensation for cases he could have taken but for Goodyear’s 10 concealment, as well as other expenses incurred during the same timeframe. Goodyear 11 moved to dismiss on several grounds, including that Kurtz’s claims were barred by statutes 12 of limitations. The Court granted Goodyear’s motion, finding that Kurtz’s claims were 13 barred by statutes of limitations because Kurtz had knowledge of the underlying fraud and 14 resulting injury back in 2013 when he filed the Haeger II complaint (at the latest). Kurtz 15 now brings this Motion for Reconsideration, arguing that several matters in the Motion to 16 Dismiss proceedings were “overlooked or misapprehended by the Court and represent 17 manifest error.” (Doc. 37 at 1.) 18 DISCUSSION 19 I. Legal Standard 20 As Plaintiffs acknowledge in their motion, motions for reconsideration under 21 LRCiv. 7.2(g) are disfavored absent a showing of manifest error or the existence of new 22 facts or legal authority. (Doc. 37 at 1.) Moreover, asking a court to rethink its analysis is 23 not a proper basis for seeking reconsideration. Morgal v. Maricopa Cty. Bd. of Sup’rs, No. 24 CIV 07-0670-PHX-RCB, 2012 WL 2368478, at *1 (D. Ariz. June 21, 2012). 25 II. Analysis 26 Here, Plaintiffs do not claim the existence of new facts or legal authority. Instead, 27 Plaintiffs argue that the Court overlooked or misapprehended the relevant law or facts. 28 First, Plaintiffs argue the Court overlooked/misapprehended facts and case law establishing 1 that the RICO 18 U.S.C. 1962(d) conspiracy is not barred by the statute of limitations 2 because the conspiracy continued until late 2016. Next, Plaintiffs argue that the Court 3 overlooked/misapprehended their fraudulent concealment claim, which tolls the limitations 4 period until such concealment is discovered or reasonably should have been discovered. 5 Finally, Plaintiffs argue the Court overlooked/misapprehended their claims of mail fraud, 6 obstruction of justice, abuse of process and intentional interference, because the facts 7 underlying these claims occurred after the May 2013 statute of limitations date adopted by 8 the Court. 9 Plaintiffs emphasize that this case is “not about Goodyear’s failure to disclose test 10 results, as the Court concluded,” but that they are instead seeking “different damages from 11 different deceptions,” namely “plaintiffs’ business revenue losses caused by Goodyear’s 12 years of concealment of death and injury claims, property damage claim files, adjustment 13 records and NHTSA communications disclosed in 2016.” (Doc. 37 at 3.) The Court did not 14 conclude that this case was only about Goodyear’s failure to disclose test results. The Court 15 understood that this case was about Goodyear’s failure to disclose “information regarding 16 its G159 tire” more generally. (Doc. 34 at 2.) The Court nevertheless found that Plaintiffs’ 17 claims were time-barred. As the Court noted in the July 8, 2019 Order, claims accrue for 18 both the RICO and various state law claims “when, by reasonable diligence the plaintiff 19 knows or should know of the wrongful conduct, and the plaintiff was harmed or injured as 20 the result. Keonjian v. Olcott, 216 Ariz. 563, 566 169 P.3d 927, 930 (Ct. App. 2007).” 21 (Doc. 34 at 3.) “And Mr. Kurtz would have known at the time he filed the second lawsuit 22 that he would be expending additional resources litigating Haegar II that may have 23 precluded him from taking other cases.” (Doc. 34 at 4.) Plaintiffs argue that they are 24 “entitled to pursue damage caused by new acts after the May 2013 statute of limitations as 25 each act which injures the plaintiff starts the statutory period running again,” (Doc. 37 at 26 6), but this argument “conflates the distinction between a plaintiff’s knowledge of an injury 27 . . . and his knowledge of the specific extent of resulting damage,” (Doc. 34 at 4). The 28 Court has already considered this argument and does not now find that its prior decision 1 constitutes manifest error. 2 As to Plaintiffs’ argument that Goodyear’s fraudulent concealment tolls the statute 3 of limitations, this argument was not raised in Plaintiff’s response to Goodyear’s motion 4 to dismiss. Raising an argument in a reconsideration motion that was not raised in the prior 5 proceeding “is improper as it forces both the Court and the parties to expend additional 6 time and resources revisiting issues that should have been addressed previously.” Lindquist 7 v. Farmers Ins. Co. of Arizona, No. CV 06-597-TUC-FRZ, 2008 WL 926553, at *1 (D. 8 Ariz. Apr. 7, 2008). Moreover, “[t]he new authority cited by Plaintiff[s] was readily 9 available long before Plaintiff[s] filed any response to [Goodyear’s] motion to dismiss, and 10 Plaintiff[s] give[] no justification for [their] failure to cite this authority in [their] original 11 response.” Id. Because Plaintiffs failed to raise this fraudulent concealment argument in 12 their response to Goodyear’s motion to dismiss, they cannot raise this argument in a motion 13 for reconsideration. 14 Finally, Plaintiffs argue that Goodyear’s deceptive filing to the Court in Haeger I 15 on remand constituted mail fraud, obstruction of justice, abuse of process, and intentional 16 interference.1 Plaintiffs further assert that these claims cannot be dismissed on a statute of 17 limitations basis because the filing occurred in 2018. Goodyear responds that, as with 18 Plaintiff’s fraudulent concealment argument, these arguments were not raised in Plaintiff’s 19 response to the motion to dismiss and are therefore waived in a motion for reconsideration.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 David L. Kurtz, et al., No. CV-19-00152-PHX-GMS
10 Plaintiffs, ORDER
11 v.
12 Goodyear Tire & Rubber Company,
13 Defendant. 14 15 Pending before the Court is Plaintiffs’ Motion to Reconsider. (Doc. 37.) The Court 16 denies the motion. The Court also denies Plaintiffs’ Motion to File Reply Memorandum to 17 Defendant Goodyear’s Response in Opposition to Plaintiffs’ Motion for Reconsideration 18 (Doc. 43) as moot. 19 BACKGROUND 20 In 2005 Plaintiff David Kurtz filed his first lawsuit against Defendant Goodyear 21 Tire & Rubber Company (“Goodyear”) on behalf of his clients, the Haeger family. 22 (“Haeger I”.) That case settled in 2010. However, Kurtz subsequently discovered that 23 Goodyear had not disclosed certain test results during discovery. Consequently, the Haeger 24 I court issued an order encouraging plaintiffs in that action to file a separate lawsuit dealing 25 with the alleged discovery misconduct in the case. In May 2013, Kurtz filed a second 26 lawsuit on behalf of the Haegers against Goodyear, alleging abuse of process and fraud. 27 (“Haeger II”.) The complaint requested damages that would make up the difference 28 between the settlement offer accepted in Haeger I and the true value of the claims with the 1 newly discovered material. 2 In the case underlying this reconsideration motion, filed in 2018, Kurtz brought 3 several claims on his own behalf, including two claims under the Racketeer Influenced and 4 Corrupt Organizations Act (RICO), three fraud claims, and individual claims for abuse of 5 process, aiding and abetting, and intentional interference with business expectancy. 6 Although the misconduct underlying these claims was the same as the alleged misconduct 7 underlying the Haeger II suit, Kurtz’s claims in this suit were slightly different. Instead of 8 claiming the difference between the settlement offer and true value of the claims, Kurtz 9 claimed he was entitled to compensation for cases he could have taken but for Goodyear’s 10 concealment, as well as other expenses incurred during the same timeframe. Goodyear 11 moved to dismiss on several grounds, including that Kurtz’s claims were barred by statutes 12 of limitations. The Court granted Goodyear’s motion, finding that Kurtz’s claims were 13 barred by statutes of limitations because Kurtz had knowledge of the underlying fraud and 14 resulting injury back in 2013 when he filed the Haeger II complaint (at the latest). Kurtz 15 now brings this Motion for Reconsideration, arguing that several matters in the Motion to 16 Dismiss proceedings were “overlooked or misapprehended by the Court and represent 17 manifest error.” (Doc. 37 at 1.) 18 DISCUSSION 19 I. Legal Standard 20 As Plaintiffs acknowledge in their motion, motions for reconsideration under 21 LRCiv. 7.2(g) are disfavored absent a showing of manifest error or the existence of new 22 facts or legal authority. (Doc. 37 at 1.) Moreover, asking a court to rethink its analysis is 23 not a proper basis for seeking reconsideration. Morgal v. Maricopa Cty. Bd. of Sup’rs, No. 24 CIV 07-0670-PHX-RCB, 2012 WL 2368478, at *1 (D. Ariz. June 21, 2012). 25 II. Analysis 26 Here, Plaintiffs do not claim the existence of new facts or legal authority. Instead, 27 Plaintiffs argue that the Court overlooked or misapprehended the relevant law or facts. 28 First, Plaintiffs argue the Court overlooked/misapprehended facts and case law establishing 1 that the RICO 18 U.S.C. 1962(d) conspiracy is not barred by the statute of limitations 2 because the conspiracy continued until late 2016. Next, Plaintiffs argue that the Court 3 overlooked/misapprehended their fraudulent concealment claim, which tolls the limitations 4 period until such concealment is discovered or reasonably should have been discovered. 5 Finally, Plaintiffs argue the Court overlooked/misapprehended their claims of mail fraud, 6 obstruction of justice, abuse of process and intentional interference, because the facts 7 underlying these claims occurred after the May 2013 statute of limitations date adopted by 8 the Court. 9 Plaintiffs emphasize that this case is “not about Goodyear’s failure to disclose test 10 results, as the Court concluded,” but that they are instead seeking “different damages from 11 different deceptions,” namely “plaintiffs’ business revenue losses caused by Goodyear’s 12 years of concealment of death and injury claims, property damage claim files, adjustment 13 records and NHTSA communications disclosed in 2016.” (Doc. 37 at 3.) The Court did not 14 conclude that this case was only about Goodyear’s failure to disclose test results. The Court 15 understood that this case was about Goodyear’s failure to disclose “information regarding 16 its G159 tire” more generally. (Doc. 34 at 2.) The Court nevertheless found that Plaintiffs’ 17 claims were time-barred. As the Court noted in the July 8, 2019 Order, claims accrue for 18 both the RICO and various state law claims “when, by reasonable diligence the plaintiff 19 knows or should know of the wrongful conduct, and the plaintiff was harmed or injured as 20 the result. Keonjian v. Olcott, 216 Ariz. 563, 566 169 P.3d 927, 930 (Ct. App. 2007).” 21 (Doc. 34 at 3.) “And Mr. Kurtz would have known at the time he filed the second lawsuit 22 that he would be expending additional resources litigating Haegar II that may have 23 precluded him from taking other cases.” (Doc. 34 at 4.) Plaintiffs argue that they are 24 “entitled to pursue damage caused by new acts after the May 2013 statute of limitations as 25 each act which injures the plaintiff starts the statutory period running again,” (Doc. 37 at 26 6), but this argument “conflates the distinction between a plaintiff’s knowledge of an injury 27 . . . and his knowledge of the specific extent of resulting damage,” (Doc. 34 at 4). The 28 Court has already considered this argument and does not now find that its prior decision 1 constitutes manifest error. 2 As to Plaintiffs’ argument that Goodyear’s fraudulent concealment tolls the statute 3 of limitations, this argument was not raised in Plaintiff’s response to Goodyear’s motion 4 to dismiss. Raising an argument in a reconsideration motion that was not raised in the prior 5 proceeding “is improper as it forces both the Court and the parties to expend additional 6 time and resources revisiting issues that should have been addressed previously.” Lindquist 7 v. Farmers Ins. Co. of Arizona, No. CV 06-597-TUC-FRZ, 2008 WL 926553, at *1 (D. 8 Ariz. Apr. 7, 2008). Moreover, “[t]he new authority cited by Plaintiff[s] was readily 9 available long before Plaintiff[s] filed any response to [Goodyear’s] motion to dismiss, and 10 Plaintiff[s] give[] no justification for [their] failure to cite this authority in [their] original 11 response.” Id. Because Plaintiffs failed to raise this fraudulent concealment argument in 12 their response to Goodyear’s motion to dismiss, they cannot raise this argument in a motion 13 for reconsideration. 14 Finally, Plaintiffs argue that Goodyear’s deceptive filing to the Court in Haeger I 15 on remand constituted mail fraud, obstruction of justice, abuse of process, and intentional 16 interference.1 Plaintiffs further assert that these claims cannot be dismissed on a statute of 17 limitations basis because the filing occurred in 2018. Goodyear responds that, as with 18 Plaintiff’s fraudulent concealment argument, these arguments were not raised in Plaintiff’s 19 response to the motion to dismiss and are therefore waived in a motion for reconsideration. 20 The Court agrees with respect to Plaintiff’s arguments for obstruction of justice, abuse of 21 process, and intentional interference, as there is no mention of these arguments in 22 connection with Goodyear’s May 2018 filing in Plaintiff’s response to Goodyear’s motion 23 to dismiss. Plaintiffs did, however, argue in their response that “Goodyear’s deceptive 24 filing with the Federal Court in Haeger I of May 14, 2018” established mail fraud under 25 18 U.S.C. § 1341 and that Plaintiff had therefore set forth facts constituting mail fraud 26 within “the statute of limitations sufficient to satisfy Rule 9’s requirements.” (Doc. 25 at 27 1 According to Plaintiffs’ amended complaint, the May 2018 filing included lies about the 28 terms of the settlement agreement between Plaintiffs and Goodyear and misrepresentations about the Haeger I court proceedings. (Doc. 1-3 at 61.) □□ 22-23.) 2 Even though Plaintiffs’ claim was properly raised below and is not time-barred, it 3 || cannot succeed for reasons articulated by Goodyear in its motion to dismiss. 18 U.S.C. § 1341 prohibits “use of the mails ... to obtain money or property from the one who is 5|| deceived.” Monterey Plaza Hotel Ltd. P’ship v. Local 483 of Hotel Employees & Rest. 6|| Employees Union, AFL-CIO, 215 F.3d 923, 926 (9th Cir. 2000). As in Monterey Plaza, Goodyear “did not obtain property by deceiving [Plaintiffs],” id., through its deceptive 8 || filing on May 14, 2018. Goodyear’s conduct “may have been vexatious or harassing, but 9|| it was not acquisitive. The purpose of the mail fraud . . . proscription[] is to punish wrongful 10 || transfers of property from the victim to the wrongdoer, not to salve wounded feelings.” Id. |} Because Goodyear’s deceptive filing did not constitute mail fraud, the Court did not |} commit manifest error in dismissing Plaintiffs’ mail fraud claim. 13 CONCLUSION 14 Plaintiffs have failed to prove the manifest error or existence of new facts or legal 15} authority required to sustain a motion for reconsideration of the Court’s Order of July 9, 2019. 17 IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Reconsider (Doc. 37) 18] is DENIED. 19 IT IS FURTHER ORDERED that Plaintiffs’ Motion to File Reply Memorandum 20 || to Defendant Goodyear’s Response in Opposition to Plaintiffs’ Motion for Reconsideration (Doc. 43) is DENIED as moot. 22 Dated this 27th day of September, 2019. 23 Wi 24 A Whacrsay Sooo) 25 Chief United States District Judge 26 27 28
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