Newell v. Inland Publications Inc

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Apr 09, 2024 3 4 SEAN F. MCAVOY, CLERK 7 9 No. 2:23-CV-00025-SAB 10 Plaintiff, 11 v. ORDER DENYING DEFENDANT’S MOTION

14 Defendant. ECF NO. 28 15 16 Before the Court is Defendant’s Motion for Reconsideration, ECF No. 28, 17 requesting partial reconsideration of the Court’s Order, ECF No. 27, denying 18 Defendant’s Motion to Dismiss. The motion was considered without oral argument 19 and without need for further response from Plaintiff. 20 Motions for reconsideration are generally disfavored and are considered an 21 “extraordinary remedy, to be used sparingly in the interest of finality and 22 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 23 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration “should not be 24 granted, absent highly unusual circumstances, unless the district court is presented 25 with newly discovered evidence, committed clear error, or if there is an intervening 26 change in the controlling law.” 389 Orange Street Partners v. Arnold, 179 F.3d 27 656, 665 (9th Cir. 1999). 28 1 Defendant seeks reconsideration of the portion of the Court’s order denying 2 dismissal of Plaintiff’s claims for statutory damages and attorneys’ fees. Defendant 3 claims the Court made an error of fact in finding that “Defendant’s screen capture 4 in Exhibit D does not evidence or show Defendant’s use of the Photograph on 5 February 13, 2019.” Defendant contends that Exhibit D is the “online edition of the 6 accused news article using the Photograph.” ECF No. 28 at 2. However, 7 Defendant’s Request for Judicial Notice did not contain the “online edition of the 8 accused news article.” See ECF No. 19-1 (requesting judicial notice of a 9 “[s]creenshot of publicly-available webpage: 10 https://issuu.com/theinlander/docs/inlander_02-14-2019.”). Defendant’s Exhibit D 11 is not an article, but rather a screen capture with an image of the cover of the 12 Inlander that does not evidence use of the Photograph. ECF No. 19-5. The Court 13 did take judicial notice of the existence of the Inlander webpage, but not its 14 content, except that proffered in Exhibit D. 15 Defendant’s motion for reconsideration attaches new evidentiary material 16 consisting of the declaration of its publisher, Ted S. McGregor, Jr., regarding 17 Defendant’s use of the Photograph prior to February 14, 2019. However, the Court 18 cannot take judicial notice of the McGregor Declaration in the context of a Rule 19 12(b)(6) motion, without converting it to a motion for summary judgment. See also 20 NAC Foundation, LLC v. Jodoin, No. 2:16-cv-01039-GMN-VCF, 2017 WL 21 1246338, at *3 n.5 (D. Nev. March 31, 2017) (declining to take judicial notice of 22 “declarations alleging specific statements made by [the] Defendant” pursuant to 23 Rule 12(b)(6)); City of Royal Oak Ret. Sys. v. Juniper Networks, Inc., 880 F. Supp. 24 2d 1045, 1060 (N.D. Cal. 2012) (refusing to take judicial notice of a declaration 25 submitted by investors in opposition to motion to dismiss since document was not 26 attached to the complaint, incorporated by reference, or subject to judicial notice 27 pursuant to Fed. R. Civ. P. 201). Motions for reconsideration “may not be used to 28 raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Kona, 229 F.3d at 890. 3 Defendant is free to file a motion for summary judgment. Accordingly, IT IS HEREBY ORDERED: 5 1. Defendant’s Motion for Reconsideration, ECF No. 28, is DENIED. IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order and provide copies to counsel. 8 DATED this 9th day of April 2024. 9 10 11 12 13 ‘ Shockey ec toar 15 Stanley A. Bastian 16 Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28