1 2 3 4 5 6 7 10 11 SUNFARMS, LLC, and MITCH Case No.: 18-cv-0058-L-AGS DMOHOWSKI, 12 ORDER DENYING PLAINTIFFS’ Plaintiffs, v. RECONSIDERATION OF ORDER 14 ON PARTIES’ MOTIONS (ECF Nos. EURUS ENERGY AMERICA 15 83, 90, 102, 115, 120, AND 129) AND CORPORATION, TOYOTA TSUSHO JUDGMENT IN A CIVIL CASE 16 AMERICA, INC., and DOES 1 through
100, 17 [ECF No. 154] Defendants. 18
19 On March 31, 2022, the Court issued an order (ECF No. 148) on Defendant Eurus 20 Energy America Corporation’s (“Eurus”) motion for judgment on the pleadings, motion 21 for summary judgment, and motion for leave to amend; Defendant Toyota Tsusho 22 America, Inc.’s (“TTA”) motion for summary judgment and motion to strike; and 23 Plaintiffs Mitch Dmohowski and Sunfarms, LLC’s (“Plaintiffs”) motion for summary 24 judgment. The Court granted Defendants’ motions for summary judgment and Eurus’s 25 motion for judgment on the pleadings, and denied Plaintiffs’ motion for summary 26 judgment. (ECF No. 148.) Accordingly, judgment was entered in favor of Defendants 27 and the action was closed. (ECF No. 149.) Plaintiffs now seek reconsideration 28 1 specifically of the Court’s holding that Plaintiffs are not entitled to a $500,000 2 termination payment.1 (ECF Nos. 154, 155.) Eurus opposed the motion (ECF No. 160), 3 and Plaintiffs replied, (ECF No. 161). TTA acknowledged through a statement to the 4 Court that the outcome of the present motion will have no effect on the judgment entered 5 in their favor. (ECF No. 159.) The Court decides the matter on the papers submitted 6 without oral argument. Civ. L.R. 7.1. For the reasons set forth below, the Court denies 7 the motion. 9 Eurus develops and operates renewable energy projects. In 2012, Plaintiffs entered 10 into a consulting services agreement (“CSA”) with Eurus related to projects in Hawaii: 11 the Waianae Solar Project (“Waianae”) and the Palehua Wind & Solar Project 12 (“Palehua”). Under the CSA, Plaintiffs were entitled to 500,000 dollars if, prior to their 13 termination, one of the projects they consulted on was “shortlisted” by the Hawaiian 14 Electric Company (“HECO”). The term “shortlisted” was not defined by the CSA, and 15 the parties disputed its meaning and the proper contract construction under California 16 law. (ECF No. 102-1, at 22–25; ECF No. 120-1, at 14–17.) 17 In its order, the Court held that the term “shortlist” was unambiguous. (ECF No. 18 148, at 12.) The Court then applied the dictionary definition of “shortlist” as quoted by 19 Plaintiffs. (Id. at 12; ECF No. 102-1, at 22.) Viewing the record in the light most 20 favorable to Plaintiff, the Court concluded that “the one-on-one negotiation (or other 21 bilateral activities) between Eurus and HECO that occurred before the termination date 22 do not reasonably fit within the term, ‘shortlisted.’” (ECF No. 148, at 12.) The Court 23 24
25 26 1 Plaintiffs filed a motion for reconsideration (ECF No. 154) and subsequently filed a notice of errata two days later (ECF No. 155) which included the motion for reconsideration and related documents but 27 corrected some omissions. Eurus recognized the notice of errata as the operative motion and the Court follows suit by ruling on the motion for reconsideration (ECF No. 154) but referencing the notice of 28 1 thus denied Plaintiffs’ motion for summary judgment and granted Eurus’s motion as to 2 that claim. (Id. at 13.) 4 Plaintiffs move for reconsideration pursuant to Civil Local Rule 7.1(i)(1) and 5 Federal Rules of Civil Procedure 59(e) and 60(b)(6).2 (See ECF No. 155-2 at 1–2.) 6 A party may apply for reconsideration pursuant to Federal Rules of Civil 7 Procedure 59 and 60 “[w]henever any motion or any application or petition for any order 8 or other relief has been made to any judge and has been refused in whole or in part.” Civ. 9 L.R. 7.1(i)(1); see also Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989) (“A motion 10 for reconsideration of summary judgment is appropriately brought under either Federal 11 Rule 59(e) or Federal Rule 60(b).”). 12 A district court may amend or alter its judgment under Rule 59 if “(1) the district 13 court is presented with newly discovered evidence, (2) the district court committed clear 14 error or made an initial decision that was manifestly unjust, or (3) there is an intervening 15 change in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 16 2001). “Clear error or manifest injustice is established when ‘the reviewing court on the 17 entire record is left with the definite and firm conviction that a mistake has been 18 committed.’” In re Midland Credit Mgmt., Inc. Tel. Consumer Prot. Litig., No. 19 11MD2286-MMA (MDD), 2019 WL 1676015, at *3 (S.D. Cal. Apr. 17, 2019) (quoting 20 Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)). Similarly, Rule 21 60(b)(6) allows relief from a final judgment or order for “any other reason that justifies 22 relief.” 23 Reconsideration is an “extraordinary remedy” that is to be used “sparingly.” Kona 24 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for 25 26 27 2 Plaintiffs generally cite Rule 60(b) but only identify the catchall provision under Rule 60(b)(6) as specific grounds for relief. (See ECF No. 155-2, at 1–2.) The Court thus declines to address any of the 28 1 reconsideration “may not be used to relitigate old matters, or to raise arguments or 2 present evidence that could have been raised prior to the entry of judgment.” Exxon 3 Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation omitted). Therefore “[a] 4 party seeking reconsideration must show more than a disagreement with the Court's 5 decision.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 6 2001) (citation omitted); see also Campion v. Old Republic Home Prot. Co., No. 09-CV- 7 748-JMA NLS, 2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011) (“A motion for 8 reconsideration may not be used to get a second bite at the apple.”). Whether to grant or 9 deny a motion for reconsideration is within the “sound discretion” of the district court. 10 Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters. Inc., 11 229 F.3d at 883). 13 Plaintiffs do not raise any newly discovered evidence or intervening changes in the 14 controlling law. Instead, Plaintiffs simply argue that “[t]he Court’s holding is contrary to 15 the evidence in the record” and reference evidence that was available for Plaintiffs’ use in 16 support of their motion for summary judgment. (See ECF No. 102-1, at 22–23; see also 17 ECF No. 155-2, at 3–5.) Plaintiffs are merely attempting to relitigate the issue of whether 18 Palehua was shortlisted. 19 For example, Plaintiffs argue that the Court’s order was contrary to the case Fitbit, 20 Inc. v. AliphCom, No. 15-CV-04073-EJD, 2017 WL 386257 (N.D. Cal. Jan. 27, 2017), 21 which held that the definition of “list” includes a list of one, supporting Plaintiffs’ 22 contention that Palehua was shortlisted because the project appeared on a list of one. 23 (ECF No. 155-2, at 7.) Plaintiffs claim that this departure “rises to clear error.” (Id.) In 24 addition to ignoring the fundamentals of stare decisis, see Camreta v. Greene, 563 U.S.
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1 2 3 4 5 6 7 10 11 SUNFARMS, LLC, and MITCH Case No.: 18-cv-0058-L-AGS DMOHOWSKI, 12 ORDER DENYING PLAINTIFFS’ Plaintiffs, v. RECONSIDERATION OF ORDER 14 ON PARTIES’ MOTIONS (ECF Nos. EURUS ENERGY AMERICA 15 83, 90, 102, 115, 120, AND 129) AND CORPORATION, TOYOTA TSUSHO JUDGMENT IN A CIVIL CASE 16 AMERICA, INC., and DOES 1 through
100, 17 [ECF No. 154] Defendants. 18
19 On March 31, 2022, the Court issued an order (ECF No. 148) on Defendant Eurus 20 Energy America Corporation’s (“Eurus”) motion for judgment on the pleadings, motion 21 for summary judgment, and motion for leave to amend; Defendant Toyota Tsusho 22 America, Inc.’s (“TTA”) motion for summary judgment and motion to strike; and 23 Plaintiffs Mitch Dmohowski and Sunfarms, LLC’s (“Plaintiffs”) motion for summary 24 judgment. The Court granted Defendants’ motions for summary judgment and Eurus’s 25 motion for judgment on the pleadings, and denied Plaintiffs’ motion for summary 26 judgment. (ECF No. 148.) Accordingly, judgment was entered in favor of Defendants 27 and the action was closed. (ECF No. 149.) Plaintiffs now seek reconsideration 28 1 specifically of the Court’s holding that Plaintiffs are not entitled to a $500,000 2 termination payment.1 (ECF Nos. 154, 155.) Eurus opposed the motion (ECF No. 160), 3 and Plaintiffs replied, (ECF No. 161). TTA acknowledged through a statement to the 4 Court that the outcome of the present motion will have no effect on the judgment entered 5 in their favor. (ECF No. 159.) The Court decides the matter on the papers submitted 6 without oral argument. Civ. L.R. 7.1. For the reasons set forth below, the Court denies 7 the motion. 9 Eurus develops and operates renewable energy projects. In 2012, Plaintiffs entered 10 into a consulting services agreement (“CSA”) with Eurus related to projects in Hawaii: 11 the Waianae Solar Project (“Waianae”) and the Palehua Wind & Solar Project 12 (“Palehua”). Under the CSA, Plaintiffs were entitled to 500,000 dollars if, prior to their 13 termination, one of the projects they consulted on was “shortlisted” by the Hawaiian 14 Electric Company (“HECO”). The term “shortlisted” was not defined by the CSA, and 15 the parties disputed its meaning and the proper contract construction under California 16 law. (ECF No. 102-1, at 22–25; ECF No. 120-1, at 14–17.) 17 In its order, the Court held that the term “shortlist” was unambiguous. (ECF No. 18 148, at 12.) The Court then applied the dictionary definition of “shortlist” as quoted by 19 Plaintiffs. (Id. at 12; ECF No. 102-1, at 22.) Viewing the record in the light most 20 favorable to Plaintiff, the Court concluded that “the one-on-one negotiation (or other 21 bilateral activities) between Eurus and HECO that occurred before the termination date 22 do not reasonably fit within the term, ‘shortlisted.’” (ECF No. 148, at 12.) The Court 23 24
25 26 1 Plaintiffs filed a motion for reconsideration (ECF No. 154) and subsequently filed a notice of errata two days later (ECF No. 155) which included the motion for reconsideration and related documents but 27 corrected some omissions. Eurus recognized the notice of errata as the operative motion and the Court follows suit by ruling on the motion for reconsideration (ECF No. 154) but referencing the notice of 28 1 thus denied Plaintiffs’ motion for summary judgment and granted Eurus’s motion as to 2 that claim. (Id. at 13.) 4 Plaintiffs move for reconsideration pursuant to Civil Local Rule 7.1(i)(1) and 5 Federal Rules of Civil Procedure 59(e) and 60(b)(6).2 (See ECF No. 155-2 at 1–2.) 6 A party may apply for reconsideration pursuant to Federal Rules of Civil 7 Procedure 59 and 60 “[w]henever any motion or any application or petition for any order 8 or other relief has been made to any judge and has been refused in whole or in part.” Civ. 9 L.R. 7.1(i)(1); see also Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989) (“A motion 10 for reconsideration of summary judgment is appropriately brought under either Federal 11 Rule 59(e) or Federal Rule 60(b).”). 12 A district court may amend or alter its judgment under Rule 59 if “(1) the district 13 court is presented with newly discovered evidence, (2) the district court committed clear 14 error or made an initial decision that was manifestly unjust, or (3) there is an intervening 15 change in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 16 2001). “Clear error or manifest injustice is established when ‘the reviewing court on the 17 entire record is left with the definite and firm conviction that a mistake has been 18 committed.’” In re Midland Credit Mgmt., Inc. Tel. Consumer Prot. Litig., No. 19 11MD2286-MMA (MDD), 2019 WL 1676015, at *3 (S.D. Cal. Apr. 17, 2019) (quoting 20 Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)). Similarly, Rule 21 60(b)(6) allows relief from a final judgment or order for “any other reason that justifies 22 relief.” 23 Reconsideration is an “extraordinary remedy” that is to be used “sparingly.” Kona 24 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for 25 26 27 2 Plaintiffs generally cite Rule 60(b) but only identify the catchall provision under Rule 60(b)(6) as specific grounds for relief. (See ECF No. 155-2, at 1–2.) The Court thus declines to address any of the 28 1 reconsideration “may not be used to relitigate old matters, or to raise arguments or 2 present evidence that could have been raised prior to the entry of judgment.” Exxon 3 Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation omitted). Therefore “[a] 4 party seeking reconsideration must show more than a disagreement with the Court's 5 decision.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 6 2001) (citation omitted); see also Campion v. Old Republic Home Prot. Co., No. 09-CV- 7 748-JMA NLS, 2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011) (“A motion for 8 reconsideration may not be used to get a second bite at the apple.”). Whether to grant or 9 deny a motion for reconsideration is within the “sound discretion” of the district court. 10 Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters. Inc., 11 229 F.3d at 883). 13 Plaintiffs do not raise any newly discovered evidence or intervening changes in the 14 controlling law. Instead, Plaintiffs simply argue that “[t]he Court’s holding is contrary to 15 the evidence in the record” and reference evidence that was available for Plaintiffs’ use in 16 support of their motion for summary judgment. (See ECF No. 102-1, at 22–23; see also 17 ECF No. 155-2, at 3–5.) Plaintiffs are merely attempting to relitigate the issue of whether 18 Palehua was shortlisted. 19 For example, Plaintiffs argue that the Court’s order was contrary to the case Fitbit, 20 Inc. v. AliphCom, No. 15-CV-04073-EJD, 2017 WL 386257 (N.D. Cal. Jan. 27, 2017), 21 which held that the definition of “list” includes a list of one, supporting Plaintiffs’ 22 contention that Palehua was shortlisted because the project appeared on a list of one. 23 (ECF No. 155-2, at 7.) Plaintiffs claim that this departure “rises to clear error.” (Id.) In 24 addition to ignoring the fundamentals of stare decisis, see Camreta v. Greene, 563 U.S. 25 692, 709 n.7 (2011), this argument embodies an inappropriate basis for reconsideration as 26 an attempt to get a “second bite at the apple.” 27 Plaintiffs further argue that the Court did not apply correct California substantive 28 law when the Court failed to resolve the ambiguous term “shortlist” against Eurus as the 1 || drafter. (ECF No. 155-2, at 6-8.) This argument boils down to an assertion that the term 2 || “shortlist” 1s in fact ambiguous, which is a matter already considered and ruled upon by 3 Court. (See ECF No. 102-1, at 23-24; ECF No. 148 at 12.) 4 Here, Plaintiffs are rehashing arguments previously rejected by the Court. It 5 || follows that Plaintiffs have failed to provide a sufficient basis for reconsideration. See 6 || Ausmus v. Lexington Ins. Co., No. 08-CV-2342-L, 2009 WL 2058549, at *2 (S.D. Cal. 7 || July 15, 2009) (“[A]fter thoughts or shifting of ground do not constitute an appropriate 8 || basis for reconsideration.” (quotation omitted)); ArchitectureArt LLC v. City of San 9 || Diego, No. 15-CV-01592-BAS-NLS, 2017 WL 1346899, at *1 (S.D. Cal. Apr. 4, 2017) 10 || (denying reconsideration where the movant made “the same arguments it did in the 11 Motion for Summary Judgment” and “essentially argue[d] the Court was wrong in its 12 || decision.”). 13 Finally, Plaintiffs’ conclusory allegations throughout their motion that the Court’s 14 || findings were made in “clear error” and that an “unjust result” will occur are insufficient 15 || grounds for reconsideration. (ECF No. 155-2, at 7-9.) Plaintiffs have failed to 16 demonstrate any “extraordinary” circumstances that would warrant relief. Consequently, 17 Court declines to reconsider its holding. 19 For the reasons stated above, Plaintiffs’ motion for reconsideration is DENIED. 21 22 ||Dated: October 12, 2022 fee oop 74 H . James Lorenz, United States District Judge 25 26 27 28