United States of America for the Use and Benefit of: McCullough Plumbing, Inc. v. Halbert Construction Company, Inc.

Opinion

1 2 3 4 7 UNITED STATES OF AMERICA for the Case No.: 17-CV-803-CAB-WVG use and benefit of: 8 ORDER DENYING MOTION FOR 9 McCULLOUGH PLUMBING, INC., RECONSIDERATION

10 Plaintiff,

11 v. [Doc. Nos. 188] COMPANY, INC. et al., 13 Defendants. 14

COUNTERCLAIMS AND THIRD 17 18 On September 27, 2019, the Court entered an order denying a motion by 19 McCullough Plumbing, Inc. and the Guarantee Company of North America for attorneys’ 20 fees, nontaxable costs, and prejudgment interest. McCullough now moves for 21 reconsideration of that order pursuant to Rule 60(b)(6) on the grounds that, according to 22 McCullough, it was manifestly unjust not to award McCullough and Guarantee their fees 23 and prejudgment interest. The motion for reconsideration is denied. 24 In the motion for reconsideration, McCullough and Guarantee simply restate the 25 arguments they made in their original motion. The Court, however, considered the entirety 26 of the original motion (including the “success rates” claimed by McCullough and re-argued 27 here) before concluding that McCullough was not the prevailing party and is therefore not 28 entitled to its attorneys’ fees and nontaxable costs pursuant to the Subcontract, and that 1 Guarantee is not entitled to its fees for successfully defending Halbert’s claim under the 2 Performance Bond. Unsurprisingly, McCullough and Guarantee are unhappy with the 3 Court’s ruling, but their inability to convince the Court the first time around does not entitle 4 them to a second bite at the apple under Rule 60(b)(6). By merely rearguing their positions 5 that they are entitled to attorneys’ fees, nontaxable costs, and prejudgment interest, neither 6 McCullough nor Guarantee have offered any grounds for reconsidering the Court’s order 7 on the motion to dismiss. See Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 8 F.3d 892, 899 (9th Cir. 2001) (“Because North American and Federal simply reargued their 9 case . . . the district court did not abuse its discretion in denying the motion.”). 10 Ultimately, the Court echoes the following sentiment expressed by another district 11 judge that motions for reconsideration should not be used merely as an intermediate 12 “appeal” before taking a disputed ruling to the Ninth Circuit: 13 The Court cannot emphasize strongly enough that the Rules allowing for motions for reconsideration are not intended to provide litigants with a second 14 bite at the apple. Rather, reconsideration is an “extraordinary remedy, to be 15 used sparingly in the interests of finality and conservation of judicial resources.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 16 Cir. 2000). In an adversarial system such as ours, more often than not one 17 party will win and one will lose. Generally, it follows that the losing party will be unhappy with the Court’s decision. Rarely does the losing party 18 believe that its position lacked merit, or that the Court was correct in ruling 19 against it. Rather than either accept the Court’s ruling or appeal it, it seems to have instead become de rigueur to file a motion for reconsideration. The 20 vast majority of these motions represent a simple rehash of the arguments 21 already made, although now rewritten as though the Court was the opposing party and its Order the brief to be opposed. It is easy for each litigant to 22 consider only his or her own motion, and the seemingly manifest injustice that 23 has been done to them. But the cumulative effect is one of abuse of the system and a drain on judicial resources that could be better used to address matters 24 that have not yet been before the Court once, let alone twice. 25 This is not to say that a motion for reconsideration is never well-taken. A 26 litigant should not shy from bringing to the Court’s attention changes in facts and circumstances that render a ruling no longer logical, an intervening 27 change in controlling authority, or other critical matters that the Rules provide 28 should be brought to the Court’s attention in this way. On this basis, motions 1 for reconsideration should be few, far between, and narrowly focused. When 7 this is the case, the Rules work as they were intended, and the Court can focus on the business of justice. : Strobel v. Morgan Stanley Dean Witter, No. O4CV1069 BEN(BLM), 2007 WL 1053454, 5 *3—4 (S.D. Cal. Apr. 10, 2007). 6 The instant motion does not meet the description in the second paragraph of the 4 above block quote. To the contrary, the motion is a prime example of the circumstance g identified in the first paragraph, with McCullough and Guarantee expressly characterizing 9 the Court’s opinion as “argument” and treating the Court as the opposing party. See Doc 10 No. 188-1 at 7 (‘This Court argued that McCullough Plumbing was not entitled to fees and ll costs....”), 12 (‘This Court argues that because Halbert sought to enforce the bond rather 12 than the subcontract ... .) (emphasis added). The Court’s opinion is not argument; it is an 13 explanation of the Court’s reasoning in resolving a dispute between the parties. In reaching 14 its conclusions here, the Court considered all of the arguments McCullough and Guarantee 15 made in their original motion, along with the arguments made by Halbert Construction 16 Company in opposition and all of the facts of this case, including the jury verdict, and 7 found that McCullough was not a prevailing party entitled to its fees, and that Guarantee 1g || as not entitled to its fees either. Likewise, the Court considered all relevant facts and 19 arguments in finding that McCullough is not entitled to prejudgment interest. That 20 McCullough and Guarantee think the Court’s conclusions are incorrect is not a grounds for 71 reconsideration. Accordingly, the motion is DENIED. 79 It is SO ORDERED. 73 Dated: November 8, 2019 € 24 Hon. Cathy Ann Bencivengo 5 United States District Judge 26 27 28