United States District Court, W.D. Washington, Tacoma
MARK D. KLEINSASSER, Plaintiff,
PROGRESSIVE DIRECT INSURANCE COMPANY and PROGRESSIVE MAX INSURANCE COMPANY, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Mark
Kleinsasser's (“Plaintiff”) motion for
reconsideration. Dkt. 132.
21, 2019, the Court denied Plaintiff's motion to certify
class because Plaintiff failed to submit evidence in support
of, and establish that, Defendants Progressive Direct
Insurance Company (“Direct”) and Progressive Max
Insurance Company (“Max”) (collectively
“Progressive”) were juridically linked such that
the Court should certify a bilateral class of multiple
plaintiffs and multiple defendants. Dkt. 132. On July 2,
2019, Plaintiff filed a motion for reconsideration and
submitted evidence in support of the juridically linked
issue. Dkts. 132, 133.
for reconsideration are governed by Local Rule 7(h), which
provides as follows:
Motions for reconsideration are disfavored. The court will
ordinarily deny such motions in the absence of a showing of
manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its
attention earlier with reasonable diligence.
Local Rules W.D. Wash. LCR 7(h). “[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.”
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000) (quoting 389 Orange Street
Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
Such a motion “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
this standard, Plaintiff's motion fails for numerous
reasons. First, Plaintiff admits that he could have
reasonably submitted the evidence in support of his position
with the original motion. Dkt. 132 at 1 (“Plaintiff,
however, neglected to re-file the exhibits.”). Thus,
Plaintiff has failed to establish that reconsideration of the
order is warranted based on the newly submitted evidence.
Kona, 229 F.3d at 890. While this may seem harsh,
this is not the first time Plaintiff's counsel has failed
to properly submit evidence in support of class
certification. See Kogan v. Allstate Fire & Casualty
Insurance Company, C15-5559-BHS, Dkts. 70, 80.
Plaintiff argues that the juridical link exception is
“well-established law.” Dkt. 132 at 4. To support
this proposition, Plaintiff cites to Hovenkotter v.
Safeco Corp., C09-218-JLR, 2009 WL 6698629 (W.D. Wash.
Aug. 3, 2009), which states that “[s]ince its
inception, the juridical link doctrine has been applied
somewhat inconsistently with some courts purporting to use
the doctrine to establish Article III standing as well as
providing the basis for class certification.”
Id. at *4. Thus, the Court's discretionary
denial of class certification under an exception that has
been inconsistently applied is not a manifest error of law.
in Hovenkotter, the Court granted the
defendants' motion to dismiss claims similar to
Plaintiff's claims. There, Mr. Hovenkotter alleged that
three defendants were juridically linked because they
“share[d] a common owner, a written agreement, and
‘common participation' [in insurance practices] . .
. .” Id. at *2. The Court reasoned and
concluded as follows:
Regardless of the inconsistent application of the juridical
link doctrine, here, the court declines to endorse the notion
that related companies may be sued by one plaintiff having
claims against only one company based on a theory that the
defendants are all engaged in the same activity.
At this point, Mr. Hovenkotter fails to establish a right to
hale Safeco America and Safeco Corporation into court on the
basis that they employ the same or similar tactics as the
company that allegedly injured Mr. Hovenkotter: Safeco.
Accordingly, the court dismisses all claims against Safeco
America and Safeco Corporation. The court does so without
prejudice to Mr. Hovenkotter's seeking to amend his
complaint to include claims against these Defendants at a
later date, if or when he has sufficient allegations of an
injury caused by Safeco Corporation or Safeco America.
Id. at *4-5. Thus, under this logic, Plaintiff's
theory of a common practice and a written agreement would be
insufficient to establish the required juridical link.
Plaintiff floats a new theory of liability by stating that
Max is not a necessary defendant. Dkt. 132 at 3 & n.1. If
so, Plaintiff should follow the proper procedure of amending
his complaint and his proposed class instead of requesting
the Court ignore a named entity in a motion for
Plaintiff states that “[w]ith due respect to this
Court's discussion of Article III standing - which is met
as to Mr. Kleinsasser in any respect, as he has direct claims
against Progressive Direct, Article III standing is not the
issue.” Dkt. 132 at 4-5. The Court did not discuss
standing and denied Plaintiff's motion purely on