DENNIS L. BECK, Magistrate Judge.
Plaintiff Keith Warkentin ("Plaintiff") filed the instant motion for (1) clarification of the Court's orders denying Plaintiff's motion to strike and granting Defendant Federated Life Insurance Company's motion for summary judgment; and (2) reconsideration on the Court's order granting Defendant Federated Life Insurance Company's motion for summary judgment and judgment. The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g), and vacated the hearing scheduled for May 25, 2012.
Plaintiff Keith Warkentin ("Plaintiff") filed this action on December 22, 2009, in Merced County Superior Court claiming that Defendant Federated Life Insurance Company ("Federated") unreasonably denied him benefits under two disability insurance policies. Federated removed the action to this Court on February 10, 2010, and filed an answer.
On January 18, 2012, pursuant to a stipulation by the parties, Plaintiff filed a First Amended Complaint ("FAC") regarding denial of benefits under a single disability income insurance policy issued by Federated on September 8, 2005. Federated filed an answer to the FAC, along with a counterclaim, on January 31, 2012.
On February 14, 2012, Federated filed a motion for summary judgment.
On February 21, 2012, Plaintiff filed an answer to the counterclaim, along with a motion to strike certain affirmative defenses and the counterclaim.
On March 16, 2012, Federated filed a reply to its motion for summary judgment. Federated pointed out that Plaintiff had failed to file any opposition to the motion. Doc. 56.
On March 22, 2012, at approximately 7:33 p.m., on the eve before the summary judgment motion hearing, Plaintiff filed his purported opposition. Docs. 57-59. The opposition was not timely pursuant to
On March 23, 2012, the Court held a hearing on Federated's motion for summary judgment and Plaintiff's motion to strike affirmative defenses and counterclaim. Counsel for both parties appeared at the hearing and participated in oral argument.
On March 26, 2012, the Court denied Plaintiff's motion to strike Federated's affirmative defenses and counterclaim.
On March 28, 2012, the Court granted Federated's Motion for Summary Judgment, and the Clerk of the Court entered judgment for Federated.
On April 11, 2012, Plaintiff filed the instant motion for clarification of the Court's orders and reconsideration of the Court's order granting summary judgment. Federated opposed the motion on April 16, 2012. Plaintiff filed an untimely reply on May 23, 2012.
Plaintiff moves the Court for clarification of its order denying Plaintiff's motion to strike and granting Federated's motion for summary judgment. Plaintiff's request for clarification is styled as a series of interrogatories for the Court to answer and to provide an explanation. For example, the request states:
Doc. 71, p. 2. Rather than a clarification, Plaintiff essentially asks the Court for reconsideration of its analysis. Thus, the request for clarification will be denied.
A motion for reconsideration filed within 28 days of a judgment is treated as a Rule 59(e) motion to alter or to amend the judgment.
Plaintiff seeks reconsideration pursuant to Local Rule 230. In relevant part, Local Rule 230 provides as follows:
Local Rule 230(j).
Plaintiff argues that reconsideration is appropriate because (1) facts or circumstances exist that are different from Federated's representations to the Court and (2) a misapplication of the law unknown to Plaintiff's attorney at the time of the summary judgment hearing.
Plaintiff contends that new facts or circumstances exist based on alleged misrepresentations to the Court by Federated in its briefing on the motion to strike and in its statement of undisputed facts in support of the motion for summary judgment. As a general matter, these alleged misrepresentations are not "new or different facts or circumstances," which did not exist at the time of the motion to strike or the motion for summary judgment. Local Rule 230(j). Indeed, Plaintiff had the opportunity to oppose Federated's representations either in his briefing on the relevant motions or during oral argument. Plaintiff's failure to file a reply in support of the motion to strike refining his arguments and his failure to file a timely opposition to the motion for summary judgment are not new or different circumstances which did not exist or were not shown at the time of the motion warranting reconsideration of the Court's decision.
As to the two specific representations at issue, Plaintiff first contends that Federated "has perpetrated fraud" on the Court by "representing to the Court that there was a stipulation from Plaintiff's attorney regarding filing a counterclaim." Doc. 71, p. 6. Plaintiff previously argued this exact point in his motion to strike Federated's affirmative defenses and counterclaim.
Plaintiff attempts to offer evidence of Federated's alleged misrepresentations by citing the declaration of Federated's counsel in support of the opposition to the motion to strike and counsel's statements made during oral argument. The Court has reviewed the relevant declaration and supporting documents and finds no evidence of any misrepresentation. Doc. 55. More importantly, the Court's ruling on the motion to strike did not rely on evidence of a stipulation to file a counterclaim. Rather, the Court found that "there was no agreement precluding Federated from asserting new affirmative defenses or a counterclaim." Doc. 60, p. 4. In other words, Plaintiff failed to pursue a stipulation that in any way limited Federated's response to the FAC.
As to the second representation at issue, Plaintiff contends that Federated misrepresented a material fact in support of the motion for summary judgment; that is, Plaintiff believes Federated's representation that it determined Plaintiff had undergone chiropractic treatment during the course of discovery in this action is "clearly false." Doc. 71, p. 9; Doc. 46, pp. 4-5; Doc. 47, Federated's Undisputed Material Fact No. 19. Plaintiff's challenge is a clear attempt to re-litigate the issue of whether Federated is entitled to the rescind the disability insurance policy at issue. Plaintiff has had two previous opportunities to persuade the Court that rescission is unavailable: (1) Plaintiff's motion to strike and (2) Plaintiff's opposition to the motion for summary judgment. Plaintiff also had the opportunity to dispute Federated's separate statement of undisputed material facts. Although Plaintiff was not entitled to be heard at oral argument because of his untimely opposition to summary judgment, the Court allowed his counsel to present opposing argument. The Court also considered Plaintiff's untimely opposition, but found that he had failed to assert any arguments to defeat summary judgment or to raise a genuine dispute of fact. Doc. 62, pp. 5-6.
Plaintiff again attempts to create an issue of fact by contending that Federated's counsel knew of his chiropractic visits in February or March 2008 because they had all of Dr. Chang's records. Doc. 71, p. 10. Federated does not dispute that it received the documents, but explains that
Doc. 73, p. 10. Federated relied on the deposition of Dr. Tru Chang in support of its undisputed facts and motion for summary judgment, which Plaintiff did not effectively or persuasively challenge. As such, no new or different facts exist to warrant reconsideration.
Plaintiff does not elaborate on his argument that reconsideration is appropriate because of a misapplication of the law unknown to Plaintiff's attorney at the time of the summary judgment hearing. Presumably, Plaintiff is referencing his counsel's failure to apprise himself of the relevant deadlines to file an opposition to Federated's summary judgment motion.
Plaintiff's counsel reportedly filed an untimely opposition because the dates his staff researched on
Counsel's failure to apprise himself of the relevant deadlines established by the Federal Rules of Civil Procedure and this Court's Local Rules is not an adequate basis for reconsideration. First, Plaintiff's counsel does not explain the additional delay between Federated's reply on March 16, 2012, and the filing of his opposition brief on March 22, 2012. Second, Plaintiff did not suffer any prejudice resulting from the untimely brief. The Court allowed Plaintiff's counsel to participate in oral argument on the motion for summary judgment. The Court also considered the untimely opposition in ruling on the merits of Federated's summary judgment motion. Third, and finally, Plaintiff provides no authority for the proposition that reconsideration is warranted based on his counsel's lack of knowledge or the untimely filing.
Plaintiff forwards two additional arguments for reconsideration (1) that Federated's rescission action is barred by the statute of limitations; and (2) that Federated cannot rescind the policy on the basis of a pre-existing condition. Plaintiff's arguments do not warrant reconsideration. The Court clearly addressed Plaintiff's argument that rescission was barred by the statute of limitations in its March 28, 2012 order. Doc. 62, pp. 5-8. Plaintiff has provided no basis for this Court to reconsider any argument regarding the statute of limitations. Furthermore, Plaintiff's efforts to add a new argument, namely that Federated was precluded from rescinding the policy on the basis of a pre-existing condition does not warrant reconsideration. Plaintiff does not explain why he could not (and did not) raise this issue at the time of the motion for summary judgment.
For the reasons discussed above, IT IS HEREBY ORDERED as follows:
