Bols v. Newsom

| POG □□ | cL TS ee 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA || JD BOLS, et al., Case No.: 20-cv-873-BEN (BLM) u Plains, ORDER (1) DENYING MOTION |] Vv. FOR RECONSIDERATION; and (2) DENYING MOTION FOR 1s Defendants.| [Doc. Nos. 80, 81] 16 This matter comes before the Court on two motions related to the Court’s recent 17 order denying Defendants’ Motions to Dismiss. See Order, ECF No. 74. First, the State || Defendants filed a Motion for Reconsideration, asking the Court to revisit that order.

19 ||Mot., ECF No. 80. Second, the County Defendants filed a Motion for Interlocutory ||Review. Mot., ECF No. 81. As set forth below, both motions are DENIED.

21 BACKGROUND 22 A more detailed factual summary of this case can be found in the Court’s previous \/order denying Defendants’ Motions to Dismiss. See Order, ECF No, 74, 2-3. As relevant 24 the State Defendants argue the Court should reconsider its ruling on their Motion to ||Dismiss because the Court allegedly committed “clear error.” Mot., ECF No. 80, 1. In ||the alternative, the State Defendants ask the Court to certify its order denying ||Defendants’ Motion to Dismiss for interlocutory appeal. /d. The State Defendants argue 28 appeal would concern a controlling question of law, raises a substantial ground for cy.272_REN (RIM) || difference of opinion, and will materially advance the ultimate termination of litigation.

2 || fd. at 12-17.

3 Meanwhile, the County Defendants seek an order certifying the following || questions for interlocutory appeal: 5 1) Does Rule Does Rule 8 requires plaintiff to allege facts 6 supporting each element of his claim, including ownership of property within the unincorporated areas of the County of San 7 Diego?

8 2) Does the Eleventh Amendment bar suit against local 9 officials, when such officials (i) adopt or incorporate state law without modification, and (ii) the state does not authorize 10 counties to relax the requirements of state law?

11 || Mot., ECF No. 81, 2. Plaintiffs oppose these motions, arguing Defendants “merely 12 reiterate the same arguments they made in their failed Motion[s] to Dismiss.” Opp’n, ||} ECF No. 82, 2.

14 LEGAL STANDARDS 15 A. Motion for Reconsideration 16 Although the Federal Rules of Civil Procedure do not expressly authorize a motion |\ for reconsideration, “[a] district court has the inherent power to reconsider and modify its 18 interlocutory orders prior to the entry of judgment.” United States v. LoRusso, 695 F.2d 19 || 45, 53 (2d Cir. 1982). Nevertheless, “[a] motion for reconsideration should not be || granted, absent highly unusual circumstances, unless the district court is presented with 21 newly discovered evidence, committed clear error, or if there is an intervening change in || the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 || F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 24 (9th Cir. 1999)). A motion for reconsideration “may not be used to raise arguments || or present evidence for the first time when they could reasonably have been raised earlier 26 in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. ||2000). Moreover, motions to reconsider are not a platform to relitigate arguments and || facts previously considered and rejected. See Harrison v. Sofamor/Danek Grp., Inc., ° 0-cv-273-BEN □□□□ ||Case No, 94-cv-0692-K, 1998 WL 1166044, at *3 (S.D. Cal. Sept. 15, 1998).

2 B. _Interlocutory Appeal 3 Under 28 U.S.C. § 1292(b), a party may move a district court to certify an ||“otherwise [unJappealable” order for interlocutory review. In order to certify an order for || appeal, the court must find that “such order involves a controlling question of law as to || which there is substantial ground for difference of opinion and that an immediate appeal || from the order may materially advance the ultimate termination of the litigation.” 28 ||U.S.C. § 1292(b). The moving party bears the burden of demonstrating these || prerequisites, Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010), and that burden |/is heavy one. “Section 1292(b) is a departure from the normal rule that only final ||judgments are appealable, and therefore must be construed narrowly.” James v. Price {2 || Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002). The Ninth Circuit has 13 stressed that § 1292(b) is to be applied sparingly and only in exceptional situations in || which an interlocutory appeal would help avoid protracted and expensive litigation. In re || Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir, 1982).

16 ||. DISCUSSION 17 As set forth below, the Court denies both the State Defendants’ Motion for ||Reconsideration and the County Defendants’ Motion for Interlocutory Review.

19 A. Motion for Reconsideration 20 The State Defendants argue the Court should reconsider its order denying their ||Motion to Dismiss because it is “clear[ly] error[oneous].” Mot., ECF No. 80, 5-12.

22 ||Specifically, the State Defendants argue the Court erred by holding Plaintiffs have |/alleged a violation of a fundamental right and by denying the State Defendants’ Motion 24 Dismiss Plaintiffs’ procedural due process claim.

25 Much of the State Defendants’ Motion for Reconsideration is simply used “as a 26 to reassert previously presented legal arguments or facts.” Harrison, 1998 WL 27 1166044, at *4. Those arguments are disregarded here because the State Defendants ||“cannot now relitigate issues which the Court has already addressed completely.” □□□ -cy.273-BEN □□□□ || However, in a separate filing, the State Defendants argue the Ninth Circuit’s recent ||decision in Tandon v. Newsom, F.3d ___, 2021 WL 1185157 (Mar. 30, 2021), requires || the Court to revisit its holding that Plaintiffs have stated a claim for violation of their ||substantive due process rights. See Supplemental Document, ECF No. 86.

5 In light of the State Defendants’ citation to new legal authority on this issue, the || Court exercises its inherent authority to reconsider its previous order. See LoRusso, 695 ||F.2d at 53. Having reconsidered the previous order in light of Tandon, the Court reaches 8 same conclusion. The State Defendants’ Motion to Dismiss Plaintiffs’ substantive || due process claim is denied.

10 Tandon is procedurally distinguishable, coming before the Ninth Circuit on a ||motion seeking a preliminary injunction pending appeal and evaluating whether the || plaintiffs were likely to succeed on the merits — not whether they have plausibly stated a ||claim for relief. 2021 WL 1185157, at *11. Moreover, the court did not foreclose the || possibility that there is a fundamental right to work, it simply noted that the Ninth Circuit 15 not yet so held. Jd. (finding the district court “/ikely did not err in applying rational || basis review” but not deciding the question). Based on the foregoing, the Court does not |\reach a different conclusion with respect to the State Defendants’ Motion to Dismiss || Plaintiffs’ substantive due process claims.

19 The State Defendants’ limited argument regarding Plaintiffs’ procedural due || process claims fares no better. See Mot., ECF No. 80, 9-11. These arguments were ||previously asserted by the State Defendants and rejected — at this juncture — by the Court.

22 Harrison, 1998 WL 1166044, at *4 (“In general, a party may not use a motion for ||reconsideration simply as a tool to reassert previously presented legal arguments or || facts.”). Accordingly, the State Defendants’ Motion for Reconsideration is denied.

25 B. Motions for Interlocutory Appeal 26 In the alternative, the State Defendants request the Court certify its order for 27 interlocutory appeal. Mot., ECF No. 80, 12-17. The County Defendants also ask the 28 Court to certify two questions for interlocutory review. Mot., ECF No. 81, 2.

9)-cv-873-BEN (BLM) 1 To certify an order for interlocutory review, the court must find that “such order 2, ||involves a controlling question of law as to which there is substantial ground for || difference of opinion and that an immediate appeal from the order may materially || advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Both the State || Defendants and County Defendants assert all three prongs of this test are met. The Court |i disagrees.

7 The Ninth Circuit has held that § 1292(b) is “to be used only in exceptional || situations in which allowing an interlocutory appeal would avoid protracted and || expensive litigation.” Jn re Cement Antitrust Litig., 673 F.2d at 1026. Far from || “protracted and expensive,” this litigation is straightforward. Adopting Defendants’ || position here would encourage litigants to precipitously run to an appellate court anytime 12 unfavorable ruling was handed down. This would have the effect of actually hindering, not advancing, “the ultimate termination of the litigation.” 28 U.S.C. § 14 || 1292(b). The Court seeks a resolution of this case on its merits, and Defendants’ Motions || for Interlocutory Review will delay that endeavor. Accordingly, the Motions for ||Interlocutory Review are denied.

17 IV. CONCLUSION 18 The Motion for Reconsideration (ECF No. 80) and Motion for Interlocutory || Review (ECF No. 81) are DENIED.

20 IT ISSO ORDERED.

21 || Dated: April, 2021 : 23 HONCROGER T- BENITEZ Pnited States Districf Judge 90-cv-873-BEN □□□□□