United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO RECONSIDER
B. Leighton United States District Judge.
MATTER is before the Court on Defendants' Motion to
Reconsider [Dkt. #56]. Defendants contend that the Court
committed manifest error in its Order denying their motion
for summary judgment on qualified immunity [Dkt. #51] because
the Plaintiff failed to present admissible evidence to raise
a genuine issue of material fact. Defendants also argue that
the Court erred by applying the incorrect legal standard.
Local Rule 7(h)(1), motions for reconsideration are
disfavored, and will ordinarily be denied unless there is a
showing of (a) manifest error in the ruling, or (b) facts or
legal authority which could not have been brought to the
attention of the court earlier, through reasonable diligence.
The term “manifest error” is “an error that
is plain and indisputable, and that amounts to a complete
disregard of the controlling law or the credible evidence in
the record.” Black's Law Dictionary 622 (9th ed.
is an “extraordinary remedy, to be used sparingly in
the interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “[A]
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” Marlyn Natraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009). Neither the Local Civil Rules nor the Federal Rule of
Civil Procedure, which allow for a motion for
reconsideration, is intended to provide litigants with a
second bite at the apple. A motion for reconsideration should
not be used to ask a court to rethink what the court had
already thought through - rightly or wrongly. Defenders
of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz.
1995). Mere disagreement with a previous order is an
insufficient basis for reconsideration, and reconsideration
may not be based on evidence and legal arguments that could
have been presented at the time of the challenged decision.
Haw. Stevedores, Inc. v. HT & T Co., 363
F.Supp.2d 1253, 1269 (D. Haw. 2005). “Whether or not to
grant reconsideration is committed to the sound discretion of
the court.” Navajo Nation v. Confederated Tribes
& Bands of the Yakima Indian Nation, 331 F.3d 1041,
1046 (9th Cir. 2003).
Plaintiff has offered sufficient evidence to raise a genuine
issue of material fact.
argue that the Court committed manifest error because
McGregor “offered no factual evidence to raise a
genuine issue as to any material fact and instead relied
solely upon unsupported allegations in her complaint.”
Dkt. 56 at 2. Defendants assert that McGregor has offered
“no testimony at all” because her Amended
Complaint is not properly verified. Id. at 3. In
essence, Defendants' argue that because the Complaint is
unverified, Deputy Sapp is entitled to all inferences in his
favor, and the Court must accept Defendants' account of
events as true and grant summary judgment. This argument is
McGregor's initial Complaint was unverified, McGregor
filed a Declaration (1) verifying her Complaint and Amended
Complaint; and (2) attesting under the penalty of perjury to
her personal knowledge of the facts in the Amended Complaint.
See Dkt. 38. The Court declines Defendants'
invitation to deny Plaintiff her day in Court over the
equivalent of a foot fault, the specific wording McGregor
used in her Declaration verifying her Amended Complaint.
also suggest that because the Complaint contains a recitation
of disputed facts about which McGregor cannot have personal
knowledge, Deputy Sapp is entitled to qualified immunity.
Defendants argue that the Court improperly relied on
McGregor's “'assertions' and
‘contentions' instead of admissible factual
evidence . . . .” Dkt. 56 at 4. But McGregor's
statements about her own conduct prior to being shot is
admissible testimony based upon her personal knowledge. As
the Court stated in its Order, “Because the
reasonableness of Deputy Sapp's decision to shoot
McGregor depends on disputed issues of material fact, it is
not a legal inquiry, but rather a question of fact best
resolved by a jury. See Wilkins v. City of Oakland,
350 F.3d 949, 955 (9th Cir. 2003).” Dkt. 51 at 10-11.
The Court applied the proper legal standard.
Defendants argue that the Court improperly applied the less
stringent Fed.R.Civ.P. 12(b)(6) legal standard instead of the
proper Fed.R.Civ.P. 56 summary judgment standard. This
argument is again premised on McGregor's perceived
inability to contest Defendants' version of events with
admissible evidence. Dkt. 56 at 6.
[the excessive force inquiry] nearly always requires a jury
to sift through disputed factual contentions, and to draw
inferences therefrom, we have held on many occasions that
summary judgment or judgment as a matter of law in excessive
force cases should be granted sparingly.” Smith v.
City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). The
Court has already determined that viewing the evidence in the
light most favorable ...