1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Helen Nyerges, et al., No. CV-19-02376-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 Hillstone Restaurant Group Incorporated,
13 Defendant. 14 15 Pending before the Court is Plaintiffs’ motion for reconsideration. (Doc. 122.) For 16 the following reasons, the motion is denied. 17 RELEVANT BACKGROUND 18 This is a dram-shop liability action arising out of the death of Lewis Nyerges 19 (“Nyerges”). On the evening in question, Nyerges and a group of companions consumed 20 food and drinks at Bandera, a Scottsdale restaurant operated by Hillstone Restaurant Group 21 Incorporated (“Hillstone”). Around 10:00 p.m., Nyerges choked while eating his meal, 22 collapsed, and was rushed to the hospital, where he later died. 23 In the aftermath of the incident, Hillstone’s general counsel solicited written 24 statements from four Hillstone employees (Waldo, Skousen, Goodman, and Rodavich) 25 who were on duty on the night of the incident. (Doc. 67-1.) During the discovery process, 26 Plaintiffs moved to compel production of those written statements. (Doc. 67.) In an order 27 issued in July 2020, the Court denied this motion on the ground that the written statements 28 were protected by the attorney-client privilege. (Doc. 75.) 1 Afterward, Plaintiffs filed a related motion, arguing that they had reason to doubt 2 whether Hillstone had fully disclosed the facts set forth in the written statements during the 3 discovery process and that the Court should conduct an in camera review of the written 4 statements to confirm the sufficiency of Hillstone’s disclosures. (Doc. 88.) During the 5 resulting hearing in September 2020, “Hillstone’s counsel twice avowed that all of the facts 6 contained in the witness statements have been conveyed to Plaintiffs through witness 7 deposition testimony or through Hillstone’s Mandatory Initial Discovery Pilot Project 8 (‘MIDP’) disclosures.” (Doc. 103 at 1-2.) In October 2020, based in part on these avowals, 9 the Court denied Plaintiffs’ request for in camera review. (Id. at 4 [“[E]ven if Plaintiffs 10 had met their initial burden, the Court would exercise its discretion not to conduct an in 11 camera review in light of the facts and circumstances of this case. Hillstone’s counsel 12 twice represented to the Court, in unambiguous terms, that all facts in the witness 13 statements have already been disclosed to Plaintiffs through Hillstone’s MIDP disclosures 14 or through witness deposition testimony. Under these circumstances, in camera review is 15 not warranted.”].) 16 On August 2, 2021, after full briefing and oral argument, the Court issued a lengthy 17 order resolving the Hillstone’s motion for summary judgment and Plaintiffs’ motion for 18 discovery sanctions. (Doc. 120.) As relevant here, the Court concluded that the imposition 19 of discovery sanctions against Hillstone was warranted because Hillstone had failed to 20 properly disclose the names of two bartenders (Solomon and Bralich) who made drinks for 21 Nyerges and his companions on the night in question. (Id. at 14-30.) Plaintiffs did not 22 become aware of those bartenders’ identities until the deposition of former Hillstone 23 employee Raina Banuelos, which occurred six days before the close of the fact discovery 24 period. (Id. at 15.) The specific sanction was that “it is to be taken as established that 25 Solomon and/or Bralich bartended at Bandera on the night in question and interacted with 26 Nyerges and his party” and “the jury may, but is not required to, infer that Solomon and/or 27 Bralich observed that Nyerges was obviously intoxicated.” (Id. at 28.) 28 On August 27, 2021—that is, 25 days after the issuance of the sanctions order and 1 nearly 11 months after the issuance of the order denying in camera review—Plaintiffs filed 2 the pending motion for reconsideration of the latter order. (Doc. 122.) 3 On September 15, 2021, Hillstone filed a response. (Doc. 124.) 4 On September 22, 2021, Plaintiffs filed a reply. (Doc. 125.) 5 DISCUSSION 6 I. Legal Standard 7 “Absent good cause shown, any motion for reconsideration shall be filed no later 8 than fourteen (14) days after the date of the filing of the Order that is the subject of the 9 motion.” LRCiv. 7.2(g)(2). 10 On the merits, “[t]he Court will ordinarily deny a motion for reconsideration of an 11 Order absent a showing of manifest error or a showing of new facts or legal authority that 12 could not have been brought to its attention earlier with reasonable diligence.” LRCiv. 13 7.2(g)(1). Reconsideration is an “extraordinary remedy” that is available only in “highly 14 unusual circumstances.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 15 2000) (internal quotation marks omitted). Mere disagreement with a previous order is an 16 insufficient basis for reconsideration. Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 17 1573 (D. Haw. 1988). 18 II. The Parties’ Arguments 19 Plaintiffs seek reconsideration of the October 2020 order denying their request for 20 in camera review of the four written statements. (Doc. 122.) Plaintiffs’ overarching 21 argument is that the imposition of discovery sanctions against Hillstone in August 2021 22 “for failure to disclose key witnesses in this matter . . . calls into question defense counsel’s 23 avowals at oral argument [in September 2020] that all the facts in the witness statements 24 had been disclosed.” (Id. at 3.) Plaintiffs elaborate: “Since the Court’s reliance upon 25 Defense Counsel’s avowals at the [September 2020] hearing, however, the facts and 26 circumstances of this case have changed dramatically. Indeed, . . . since that time, the 27 Court has sanctioned Defendants for failure to disclose key witnesses. Such a change in 28 the facts and circumstances of this case call into question the validity of Defense Counsel’s 1 avowals and justifies the Court in reconsidering its Order regarding in camera inspection.” 2 (Id. at 7-8.) Plaintiffs also contend that reconsideration is warranted because the October 3 2020 order required them to make a showing that isn’t required by law. (Id. at 6.) 4 Hillstone opposes Plaintiffs’ motion. (Doc. 124.) In its response brief, Hillstone 5 once again avows that all of the facts set forth in the four witness statements have been 6 disclosed to Plaintiffs via the discovery process. (Id. at 2.) Hillstone also emphasizes that 7 the deponent (Banuelos) who identified Solomon and Bralich as bartenders working on the 8 night in question was not one of the four employees who authored a written statement. 9 (Id.) Finally, Hillstone provides a declaration from its counsel avowing that none of the 10 four witness statements contains any mention of Solomon or Bralich. (Doc. 124-1 ¶ 6.) 11 In reply, Plaintiffs repeatedly argue that the Court should not accept Hillstone’s 12 most recent avowal that all of the facts set forth in the written statements have been 13 disclosed because that avowal only appears in Hillstone’s response brief and is 14 conspicuously missing from Hillstone’s counsel’s declaration. (Doc. 125 at 2, 3, 5-6.) 15 Plaintiffs also contend that it is “irrelevant” that Solomon and Bralich aren’t mentioned in 16 the four statements because “[t]he issue is not whether any of the witness statements 17 mention the two bartenders, but whether all of the facts contained in the statements were 18 disclosed.” (Id. at 5.) Finally, Plaintiffs clarify that they “are not asking the Court to review 19 the witness statements based on an unrelated disclosure violation. Rather, Plaintiffs are 20 asking the Court to conduct an in camera review of the witness statements because the 21 conduct of Defendant throughout this litigation calls into question Defense Counsel’s 22 avowal that all the facts have been disclosed.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Helen Nyerges, et al., No. CV-19-02376-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 Hillstone Restaurant Group Incorporated,
13 Defendant. 14 15 Pending before the Court is Plaintiffs’ motion for reconsideration. (Doc. 122.) For 16 the following reasons, the motion is denied. 17 RELEVANT BACKGROUND 18 This is a dram-shop liability action arising out of the death of Lewis Nyerges 19 (“Nyerges”). On the evening in question, Nyerges and a group of companions consumed 20 food and drinks at Bandera, a Scottsdale restaurant operated by Hillstone Restaurant Group 21 Incorporated (“Hillstone”). Around 10:00 p.m., Nyerges choked while eating his meal, 22 collapsed, and was rushed to the hospital, where he later died. 23 In the aftermath of the incident, Hillstone’s general counsel solicited written 24 statements from four Hillstone employees (Waldo, Skousen, Goodman, and Rodavich) 25 who were on duty on the night of the incident. (Doc. 67-1.) During the discovery process, 26 Plaintiffs moved to compel production of those written statements. (Doc. 67.) In an order 27 issued in July 2020, the Court denied this motion on the ground that the written statements 28 were protected by the attorney-client privilege. (Doc. 75.) 1 Afterward, Plaintiffs filed a related motion, arguing that they had reason to doubt 2 whether Hillstone had fully disclosed the facts set forth in the written statements during the 3 discovery process and that the Court should conduct an in camera review of the written 4 statements to confirm the sufficiency of Hillstone’s disclosures. (Doc. 88.) During the 5 resulting hearing in September 2020, “Hillstone’s counsel twice avowed that all of the facts 6 contained in the witness statements have been conveyed to Plaintiffs through witness 7 deposition testimony or through Hillstone’s Mandatory Initial Discovery Pilot Project 8 (‘MIDP’) disclosures.” (Doc. 103 at 1-2.) In October 2020, based in part on these avowals, 9 the Court denied Plaintiffs’ request for in camera review. (Id. at 4 [“[E]ven if Plaintiffs 10 had met their initial burden, the Court would exercise its discretion not to conduct an in 11 camera review in light of the facts and circumstances of this case. Hillstone’s counsel 12 twice represented to the Court, in unambiguous terms, that all facts in the witness 13 statements have already been disclosed to Plaintiffs through Hillstone’s MIDP disclosures 14 or through witness deposition testimony. Under these circumstances, in camera review is 15 not warranted.”].) 16 On August 2, 2021, after full briefing and oral argument, the Court issued a lengthy 17 order resolving the Hillstone’s motion for summary judgment and Plaintiffs’ motion for 18 discovery sanctions. (Doc. 120.) As relevant here, the Court concluded that the imposition 19 of discovery sanctions against Hillstone was warranted because Hillstone had failed to 20 properly disclose the names of two bartenders (Solomon and Bralich) who made drinks for 21 Nyerges and his companions on the night in question. (Id. at 14-30.) Plaintiffs did not 22 become aware of those bartenders’ identities until the deposition of former Hillstone 23 employee Raina Banuelos, which occurred six days before the close of the fact discovery 24 period. (Id. at 15.) The specific sanction was that “it is to be taken as established that 25 Solomon and/or Bralich bartended at Bandera on the night in question and interacted with 26 Nyerges and his party” and “the jury may, but is not required to, infer that Solomon and/or 27 Bralich observed that Nyerges was obviously intoxicated.” (Id. at 28.) 28 On August 27, 2021—that is, 25 days after the issuance of the sanctions order and 1 nearly 11 months after the issuance of the order denying in camera review—Plaintiffs filed 2 the pending motion for reconsideration of the latter order. (Doc. 122.) 3 On September 15, 2021, Hillstone filed a response. (Doc. 124.) 4 On September 22, 2021, Plaintiffs filed a reply. (Doc. 125.) 5 DISCUSSION 6 I. Legal Standard 7 “Absent good cause shown, any motion for reconsideration shall be filed no later 8 than fourteen (14) days after the date of the filing of the Order that is the subject of the 9 motion.” LRCiv. 7.2(g)(2). 10 On the merits, “[t]he Court will ordinarily deny a motion for reconsideration of an 11 Order absent a showing of manifest error or a showing of new facts or legal authority that 12 could not have been brought to its attention earlier with reasonable diligence.” LRCiv. 13 7.2(g)(1). Reconsideration is an “extraordinary remedy” that is available only in “highly 14 unusual circumstances.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 15 2000) (internal quotation marks omitted). Mere disagreement with a previous order is an 16 insufficient basis for reconsideration. Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 17 1573 (D. Haw. 1988). 18 II. The Parties’ Arguments 19 Plaintiffs seek reconsideration of the October 2020 order denying their request for 20 in camera review of the four written statements. (Doc. 122.) Plaintiffs’ overarching 21 argument is that the imposition of discovery sanctions against Hillstone in August 2021 22 “for failure to disclose key witnesses in this matter . . . calls into question defense counsel’s 23 avowals at oral argument [in September 2020] that all the facts in the witness statements 24 had been disclosed.” (Id. at 3.) Plaintiffs elaborate: “Since the Court’s reliance upon 25 Defense Counsel’s avowals at the [September 2020] hearing, however, the facts and 26 circumstances of this case have changed dramatically. Indeed, . . . since that time, the 27 Court has sanctioned Defendants for failure to disclose key witnesses. Such a change in 28 the facts and circumstances of this case call into question the validity of Defense Counsel’s 1 avowals and justifies the Court in reconsidering its Order regarding in camera inspection.” 2 (Id. at 7-8.) Plaintiffs also contend that reconsideration is warranted because the October 3 2020 order required them to make a showing that isn’t required by law. (Id. at 6.) 4 Hillstone opposes Plaintiffs’ motion. (Doc. 124.) In its response brief, Hillstone 5 once again avows that all of the facts set forth in the four witness statements have been 6 disclosed to Plaintiffs via the discovery process. (Id. at 2.) Hillstone also emphasizes that 7 the deponent (Banuelos) who identified Solomon and Bralich as bartenders working on the 8 night in question was not one of the four employees who authored a written statement. 9 (Id.) Finally, Hillstone provides a declaration from its counsel avowing that none of the 10 four witness statements contains any mention of Solomon or Bralich. (Doc. 124-1 ¶ 6.) 11 In reply, Plaintiffs repeatedly argue that the Court should not accept Hillstone’s 12 most recent avowal that all of the facts set forth in the written statements have been 13 disclosed because that avowal only appears in Hillstone’s response brief and is 14 conspicuously missing from Hillstone’s counsel’s declaration. (Doc. 125 at 2, 3, 5-6.) 15 Plaintiffs also contend that it is “irrelevant” that Solomon and Bralich aren’t mentioned in 16 the four statements because “[t]he issue is not whether any of the witness statements 17 mention the two bartenders, but whether all of the facts contained in the statements were 18 disclosed.” (Id. at 5.) Finally, Plaintiffs clarify that they “are not asking the Court to review 19 the witness statements based on an unrelated disclosure violation. Rather, Plaintiffs are 20 asking the Court to conduct an in camera review of the witness statements because the 21 conduct of Defendant throughout this litigation calls into question Defense Counsel’s 22 avowal that all the facts have been disclosed. This Court’s sanctioning of Defendant for 23 failure to disclose key witnesses in this matter is only one of several examples . . . of 24 Defendant’s conduct throughout the litigation.” (Id. at 6.) 25 III. Analysis 26 Plaintiffs’ motion for reconsideration is denied. As an initial matter, the motion is 27 untimely. Under LRCiv 7.2(g)(2), such motions must, absent good cause, be filed within 28 14 days of the issuance of the challenged order. Here, the challenged order was issued on 1 October 1, 2020 (Doc. 103) yet Plaintiffs did not file their reconsideration request until 2 August 27, 2021 (Doc. 122). The delay of nearly 11 months obviously exceeds the 14-day 3 reconsideration window. Moreover, even assuming that the basis for Plaintiffs’ 4 reconsideration request did not become fully apparent until the issuance of the sanctions 5 order on August 2, 2021 (Doc. 120), the motion was still filed outside the required 14-day 6 window. Nor have Plaintiffs demonstrated good cause for their tardiness in seeking relief. 7 The motion is also denied on the merits. In the October 2020 order, the Court 8 declined to conduct an in camera review based in part on Hillstone’s counsel’s avowals 9 during the September 2020 hearing that all of the facts set forth in the witnesses statements 10 had been disclosed to Plaintiffs via the discovery process. None of the subsequent 11 developments in this case provide a reason to reconsider the accuracy of those avowals. 12 Admittedly, Hillstone was subsequently sanctioned for discovery violations, but it is 13 significant that the sanctions were based on the failure to properly disclose information 14 known to Banuelos. Because Banuelos was not one of the authors of the four witness 15 statements, the Court does not view this episode as necessarily casting doubt on Hillstone’s 16 counsel’s avowals as to the sufficiency of Hillstone’s efforts to disclose the facts set forth 17 in the witness statements. Nor do such doubts arise from the other alleged episodes of 18 discovery misconduct discussed in Plaintiffs’ reply. Finally, although the Court agrees 19 with Plaintiffs that it is curious that Hillstone only reiterated the accuracy of its counsel’s 20 avowals in its response to the motion for reconsideration, but not in the declaration from 21 counsel attached to the response, the Court does not view this as a basis for ignoring or 22 questioning the accuracy of the avowals (which is essentially what Plaintiffs ask the Court 23 to do). Hillstone’s counsel is an officer of the court who made the previous avowals in 24 response to direct questioning by the Court and repeated the avowal in a brief she signed 25 and filed with the Court. Nothing about this state of affairs justifies the “extraordinary” 26 remedy of reconsideration. Kona Enters., 229 F.3d at 890. 27 … 28 … 1 Accordingly, IT IS ORDERED that Plaintiffs’ motion for reconsideration (Doc. 122) is denied. 3 Dated this Ist day of October, 2021. 4 5 Lm 6 f t _o—— Dominic W. Lanza 7 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
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