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Case 5:17-cv-03385-SVK Document 51 Filed 04/26/18 Page 1 of 5

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

7 STACY LININGER, Case No.17-cv-03385-SVK


Plaintiff,
8
ORDER DENYING LEAVE TO FILE
v.
9 PLAINTIFF'S MOTION FOR
RECONSIDERATION
10 RONALD PFLEGER, et al.,
Re: Dkt. No. 49
Defendants.
11

12 Before the Court is Plaintiff Stacy Lininger’s request for leave to file a motion for
Northern District of California
United States District Court

13 reconsideration of this Court’s April 4, 2018 Order Granting Defendant Flippo’s Motion to

14 Dismiss Without Leave to Amend (the “Order”). ECF 49. For the reasons discussed below, the

15 Plaintiff’s request is denied.

16 I. BACKGROUND

17 Plaintiff filed this case on June 12, 2017, alleging, inter alia, that Defendant Flippo had

18 maliciously prosecuted her in 2015 for engaging in conduct protected by the First Amendment in

19 violation of 42 U.S.C. § 1983 and seeking injunctive relief. ECF 1. On August 11, 2017,

20 Defendant Flippo moved to dismiss Plaintiff’s claim against him, arguing Plaintiff had failed to

21 plead facts sufficient to establish standing to seek injunctive relief. ECF 11. On October 24,

22 2017, the Court heard oral argument and on December 21, 2017, entered an order granting

23 Flippo’s motion to dismiss with leave to amend. ECF 38. Plaintiff filed her First Amended

24 Complaint (“FAC”) on January 22, 2018. ECF 39. In her FAC Plaintiff added allegations that she

25 had been prosecuted in 2014 for engaging in conduct protected by the First Amendment and that

26 she had pled nolo contendere to those charges. ECF 39 at ¶¶ 4-7. On February 5, 2018, Flippo

27 moved to dismiss Plaintiff’s FAC. ECF 42. The Court heard oral argument on March 20, 2018.

28 ECF 46. On April 4, 2018, the Court granted Flippo’s motion to dismiss Plaintiff’s FAC without
Case 5:17-cv-03385-SVK Document 51 Filed 04/26/18 Page 2 of 5

1 leave to amend. ECF 47.

2 On April 16, 2018, Plaintiff filed a motion for reconsideration of the Court’s April 4, 2018

3 Order. ECF 49. As the basis for her motion Plaintiff argues that the Court improperly ruled upon

4 an area of law that was not briefed or argued by the parties. ECF 49-1 at 5. Specifically, Plaintiff

5 argues that the Court improperly based its ruling on the conclusion that Plaintiff’s 2014

6 prosecution does not support standing to pursue her malicious prosecution claim because her 2014

7 prosecution was not malicious and therefore does not serve to demonstrate a pattern of the alleged

8 illegal behavior that Plaintiff seeks to enjoin. ECF 49-1 at 6-8 (citing ECF 47 at 11-12). Plaintiff

9 further complains about the Court’s conclusion that because Plaintiff pled nolo contendere to her

10 2014 claim, the underlying behavior was not lawful and therefore the Court would not find it

11 likely that she would repeat the unlawful behavior. Id.

12 Plaintiff also argues that the Court erred by taking judicial notice of state court documents
Northern District of California
United States District Court

13 that reflect Plaintiff’s nolo contendere plea. ECF 49-1 at 12-15.

14 II. LEGAL STANDARD

15 Pursuant to Civil Local Rule 7–9(a), a party may file a motion for reconsideration of any

16 interlocutory order only upon obtaining leave of the Court.1 A party seeking reconsideration must

17 show, inter alia, that (1) “at the time of the motion for leave, a material difference in fact or law

18 exists from that which was presented to the Court before entry of the interlocutory order for which

19 reconsideration is sought”; (2) “new material facts or a change of law occurring after the time of

20 such order”; or (3) a “failure by the Court to consider material facts or dispositive legal arguments

21 which were presented to the Court before such interlocutory order.” Civil L. R. 7–9(b). A motion

22 for reconsideration may not “repeat any oral or written argument made by the applying party in

23 support of or in opposition to the interlocutory order which the party now seeks to have

24 reconsidered.” Civil L. R. 7–9(c). This Local Rule is designed to promote the just, speedy and

25 inexpensive (or, at least, less expensive) determination of every action, as required by Rule 1 of

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27 Plaintiff filed her motion pursuant to Federal Rules of Civil Procedure 59 and 60. ECF 49-1 at 5.
However, this Court’s Local Rules require that Plaintiff first obtain leave to file a motion for
28 reconsideration and sets for the requisite form and content of the reconsideration motion, all of
which is addressed by the Court in this Order. See Civil L.R. 7-9(a).
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1 the Federal Rules of Civil Procedure. Network Appliance Inc. v. Sun Microsystems Inc., No. C-

2 07-06053 EDL, 2008 WL 4712604, at *1 (N.D. Cal. Oct. 22, 2008)

3 Generally, motions for reconsideration are disfavored and are not the place for parties to

4 make new arguments not raised in their original briefs. Nw. Acceptance Corp. v. Lynnwood

5 Equip., Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). Nor is reconsideration to be used to ask the

6 Court to “rethink what it has already thought.” See Garcia v. City of Napa, No. C-13-03886 EDL,

7 2014 WL 342085, at *1 (N.D. Cal. Jan. 28, 2014) (citations omitted).

8 If a court did, in fact, consider a party’s legal arguments, then that party “cannot show a

9 manifest failure by the [c]ourt to consider dispositive legal arguments,” for purposes of Rule

10 7–9(b). Bowoto v. Chevron Corp., No. C 99-02506 SI, 2007 WL 4224593, at *3 (N.D. Cal. Nov.

11 28, 2007) (internal quotations and punctuation omitted). Further, a “motion for reconsideration

12 does not allow a litigant to present new arguments unless a material difference in fact or law exists
Northern District of California
United States District Court

13 from that which was presented to the [c]ourt, or new facts have emerged or a change of law has

14 occurred after the order was issued.” United States v. Denkers, No. C 09-03403 WHA, 2010 WL

15 3249340, at *2 (N.D. Cal. Apr. 23, 2010). Not one of the requirements of Civil L. R. 7–9(b) is

16 satisfied by Plaintiff’s request.

17 III. DISCUSSION

18 Plaintiff filed a motion for reconsideration without first seeking leave as required by the

19 local rules. The Court will treat her motion as a request for leave to file her motion for

20 reconsideration based on the arguments made therein. Civil L. R. 7–9(a)-(b).

21 Preliminarily, the Court notes that the collection of facts surrounding Plaintiff’s 2014

22 prosecution was not “the critical factor” upon which the Order depends as Plaintiff argues. ECF

23 49-1 at 2. While the fact that Plaintiff pled nolo contendere to her 2014 prosecution is significant

24 in the analysis of whether her 2014 prosecution can support standing for the injunction she seeks,

25 this was but one factor among many that led to the Court’s conclusion that Plaintiff had not pled

26 facts sufficient to support standing. See generally ECF 47.

27 Nevertheless, Plaintiff has failed to make the required showing under Local Rule 7–9(b) to

28 obtain leave to file her motion for reconsideration. She has not pointed to a “material difference in
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1 fact or law” that exists from that which was presented to the Court before entry of the Court’s

2 April 4, 2018 Order. She has not pointed to “the emergence of new material facts or a change of

3 law occurring after the time of” the Court’s Order, nor has she shown a “manifest failure by the

4 Court to consider material facts or dispositive legal arguments which were presented to the Court”

5 before the Court’s Order. See ECF 46; ECF 47 at 11-12.

6 Plaintiff added the 2014 prosecution allegations when she amended her complaint. ECF

7 39 at ¶¶ 4-7. These allegations then formed the basis for Plaintiff’s argument in opposition to

8 Flippo’s motion to dismiss that she has standing to seek injunctive relief in light of Flippo

9 “repeatedly” violating Plaintiff’s constitutional rights. ECF 43 at 17, 20. The Court addressed

10 this argument both at the hearing and in its Order, concluding that the 2014 prosecution could not

11 support her argument of “repeated” constitutional violations in light of her nolo contendere plea.

12 ECF 46; ECF 47 at 11-12. There are no new facts or law to be considered, only Plaintiff’s
Northern District of California
United States District Court

13 repetitive, and ultimately unpersuasive, argument that the 2014 prosecution supports her standing

14 to seek injunctive relief against Defendant Flippo.

15 Plaintiff’s arguments regarding the Court’s judicial notice of state court documents

16 similarly fail to present a ground to support leave to file a motion for reconsideration. Plaintiff

17 opposed taking judicial notice of the state court documents at length in her opposition to

18 Defendant Flippo’s motion to dismiss. ECF at 6-11. The Court took judicial notice of the

19 documents, but did not independently analyze the facts contained in those documents as Plaintiff

20 argues. The Court cited Plaintiff’s FAC for the fact that she pled nolo contendere to the 2014

21 charges, not the state court documents. See ECF 47 at 11 (citing ECF 39 at ¶¶ 4-7). The Court did

22 not review the facts underlying the charges independently and determine her behavior was

23 unlawful as Plaintiff suggests. Instead, the Court relied on applicable federal case law to support

24 its conclusion that a nolo contendere plea is the functional equivalent of a guilty plea for the

25 purposes of determining whether the outcome of the 2014 prosecution was favorable to Plaintiff, a

26 required element in a malicious prosecution claim. See ECF 47 at 11-12. Plaintiff simply repeats

27 arguments previously rejected by the Court in taking judicial notice; no new facts or law are

28 presented to justify leave to file a motion for reconsideration.


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1 IV. CONCLUSION

2 Plaintiff has failed to present any bases to support granting leave to file her motion for

3 reconsideration. The arguments that she does present are merely an attempt to reargue issues

4 already considered by the Court. As such, Plaintiff’s motion for leave to file her motion for

5 reconsideration of the Court’s April 4, 2018 Order is denied.

6 SO ORDERED.

7 Dated: April 26, 2018

9
SUSAN VAN KEULEN
10 United States Magistrate Judge
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Northern District of California
United States District Court

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