Maluf v. Bergelectric Corp

Opinion

1 DISTRICT OF NEVADA 3 4 Jorge E. Ordonez Maluf, Case No. 2:23-cv-00115-CDS-MDC

5 Plaintiff Order Denying Plaintiff’s Motion for Revision of Interlocutory Orders and 6 v. Denying Defendant’s Motion for Sanctions

7 Bergelectric Corp., [ECF Nos. 99, 103] 8 Defendant

9 10 Plaintiff Jorge Maluf has filed a motion for revision of interlocutory orders. Mot., ECF 11 No. 99. In the motion he reiterates the arguments he presented in his motion for relief—namely 12 that defendant Bergelectric Corp. presented contradictory statements in its discovery, which he 13 believes were exposed after I ruled on the motion for summary judgment. ECF No. 99 at 1. 14 Bergelectric opposes the motion. Opp’n, ECF No. 102. Bergelectric also files a motion for 15 sanctions against Maluf based on Maluf’s post-summary-judgment-ruling motions practice. 16 Mot. for sanctions, ECF No. 103. For the reasons herein, I deny the motion for revision and deny 17 the motion for sanctions without prejudice. 18 I. Legal standard 19 A district court may reconsider an interlocutory order for cause, so long as it retains 20 jurisdiction. Local Rule 59-1(a). Reconsideration may be appropriate if the district court “(1) is 21 presented with newly discovered evidence, (2) committed clear error or the initial decision was 22 manifestly unjust, or (3) if there is an intervening change in controlling law.” Smith v. Clark Cnty. 23 Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (citing School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 24 (9th Cir. 1993)); see also LR 59-1(a). “Motions for reconsideration are disfavored. A movant must 25 not repeat arguments already presented unless (and only to the extent) necessary to explain 26 controlling, intervening law or to argue new facts.” LR 59-1(b). 1 II. Discussion 2 While titled a motion for “revision,” Maluf’s motion is in fact one for reconsideration so I 3 evaluate it under that standard. The motion is based on Maluf’s belief that there is newly 4 discovered evidence in this case. Specifically, he alleges that in a response to a prior motion for 5 reconsideration Bergelectric made an admission that “cannot be reconciled” with Bergelectric’s 6 sworn discovery responses. ECF No. 99 at 5. In a prior motion for reconsideration1 (ECF No. 7 89), Maluf argued that lack of formal documentation supporting his alleged removal from the 8 Nellis project is evidence supporting his assertion that he was not actually removed. ECF No. 89 9 at 7. In response, Bergelectric states that “just because such a document was not cited in support 10 of summary judgment does not mean it does not in fact exist. To assume otherwise is a logical 11 fallacy.” ECF No. 91 at 6. In this motion for reconsideration, Maluf believes that Bergelectric’s 12 statement in the response directly contradicts its response to the request for production where 13 it said that all documents had been produced or “never existed, [had] been lost or stolen, or were 14 inadvertently destroyed.” ECF No. 99 at 6 (citing Resp. to requests for produc., Pl.’s Ex. 1, ECF 15 No. 99-1 at 4–23). In other words, Maluf believes that Bergelectric has admitted to purposefully 16 misrepresenting itself to the court and withholding documents. This alleged contradiction, he 17 surmises, “prompted the revelation of active deception.” Id. at 7. 18 In response, Bergelectric asserts that the statement “just because a document was not 19 cited in support of summary judgment does not mean that it does not in fact exist” was made 20 “merely to point out the logical fallacy in Plaintiff’s reasoning.” ECF No. 102 at 3. It further 21 argues that this statement does not contradict any statements made by Bergelectric in discovery. 22 Rather they represent that in every response to a specific request for production, they told Maluf 23 that it would “produce [responsive documents] in its possession custody and control.” Id. 24 Bergelectric then explains that “[j]ust because certain documents were not part of that 25 production does not mean they were wrongly withheld as they may have been lost, stolen, 26 1 I denied the motion for reconsideration on July 29, 2025. ECF No. 92. 1 misplaced, or never existed.” Id. Finally, Bergelectric argues that it fully complied with the 2 discovery requests and notes that Maluf acknowledges he received the 908-page discovery file 3 from them. Id. (referencing ECF No. 99 at 8–20). 4 Contrary to Maluf’s insistence, Bergelectric has not made any contradictory statements 5 in any of its briefing. Bergelectric promised to produce all documents in its custody, possession, 6 or control and has done so. There is the possibility, as there is in any legal dispute, that certain 7 documents Maluf seeks were once in Bergelectric’s possession but were no longer in its 8 possession, they were lost, had been destroyed, or were merely no longer within Bergelectric’s 9 custody. It is also entirely possible that the documents Maluf seeks do not exist and have never 10 existed. Bergelectric has said nothing in its briefing that would lead the court to believe it 11 misrepresented the existence of certain documents or that it had falsified its discovery 12 responses. Maluf’s argument does not warrant the granting of this motion for reconsideration. 13 In the remainder of the motion, Maluf seeks to play Monday morning quarterback and 14 attempts to litigate issues relating to discovery that could have and should have been dealt with 15 prior to the resolution of the motion for summary judgment. The only “new” evidence Maluf 16 points to in his motion is the alleged contradictory statement. He then uses this alleged 17 contradiction to argue that—because Bergelectric has allegedly misrepresented itself with this 18 admission—the rest of Bergelectric’s discovery must also be tainted. Maluf’s attempt to 19 invalidate discovery that has been available to him long before the order on the motion for 20 summary judgment is misguided. These arguments should have been raised prior to the order on 21 the motion for summary judgment and Maluf’s failure to do so does not result in manifest 22 injustice. Indeed, a motion for reconsideration may not be used to raise arguments or present 23 evidence that could have been raised prior to the entry of judgment. Grady v. Biter, 2017 U.S. Dist. 24 LEXIS 55493, at *2 (S.D. Cal. Apr. 10, 2017) (citing Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 25 n.5 (2008)). 26 1 Because I do not find that Bergelectric misrepresented itself to Maluf or the court, and 2|| because the remainder of Maluf’s arguments are not properly before the court, I deny Maluf’s motion for reconsideration. 4 Additionally, having reviewed the record, and though I understand Bergelectric’s 5]| frustration, I do not find that Maluf’s filing of this motion rises to a level that warrants sanctions 6|| at this time. Therefore, Bergelectric’s motion for sanctions is denied.” Conclusion 8 IT IS HEREBY ORDERED that Maluf’s motion for revision of interlocutory orders, 9|| which is construed as a motion for reconsideration, [ECF No. 99] is DENIED. 10 IT IS FURTHER ORDERED that Bergelectric’s motion for sanctions [ECF No. 103] is 11} DENIED. 12 IT IS FURTHER ORDERED that the stay regarding the joint pretrial order is LIFTED. 13|| The parties must prepare and file a proposed joint pretrial order consistent with Local Rules and 16-4 by September 26, 2025. / } 15 Dated: September 5, 2025 LZ 16 Cri Se << 7 U □□ States District Judge 18 19 20 21 22 23 24 25 26]|? Maluf is cautioned that any continued filings that do not properly address the motion for reconsideration standard will be summarily denied.