The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The Court has before it Plaintiff's Motion for Augmentation and Reconsideration (Dkt. 163). The Court finds that a response is not warranted and denies the motion as set forth below. Further, as requested by Defendants, the Court clarifies its Memorandum Decision and Order dated January 31, 2012 (Dkt. 158).
1.Motion to Reconsider Legal Standard
A motion to reconsider an interlocutory ruling requires an analysis of two important principles: (1) Error must be corrected; and (2) Judicial efficiency demands forward progress. The former principle has led courts to hold that a denial of a motion to dismiss or for summary judgment may be reconsidered at any time before final judgment. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even an interlocutory decision becomes the "law of the case," it is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that the "law of the case" doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225 U.S. 436, 444 (1912). "The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal." In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal. 1981)(Schwartzer, J.).
The need to be right, however, must co-exist with the need for forward progress. A court's opinions "are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988).
Reconsideration of a court's prior ruling under Federal Rule of Civil Procedure 59(e) is appropriate "if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (citation omitted). If the motion to reconsider does not fall within one of these three categories, it must be denied.
2.Plaintiff's Motion for Augmentation and Reconsideration
Plaintiff asks the Court to reconsider its ruling that Defendants are entitled to judgment in their favor on Plaintiff's tort claims (breach of fiduciary duty and negligence) seeking monetary damages because Plaintiff failed to come forward with evidence establishing causation and damage for these claims. See Dkt. 158, pp. 22- 24. Plaintiff suggests that it requested that the Court hold the record open with respect to evidence of these damages pending ruling on the issue of attorney-client privilege between Michael Josephs and Defendants. Plaintiff argues that the Court did not rule on the request to augment the record, and asks the Court to reconsider its decision and allow Plaintiff to augment the record on the damages claims.
Causation and damages are elements of Plaintiff's claims for breach of fiduciary duty and negligence. In a case such as this, the Plaintiff generally must establish causation and damages through expert testimony. The deadline to disclose an expert witness passed prior to the Court's decision on the attorney client-privilege issue and the motions for summary judgment. Plaintiff did not disclose an expert to testify to these damages elements in compliance with Fed. R. Civ. P. 26(a)(2)(A). This issue was addressed in the parties' briefing and at oral argument. (See Dkt. 139, pp. 3-5; Transcript of Hearing, Oct. 5, 2011, pp. 17-18.) Accordingly, there is no basis to reconsider the Court's ruling on this matter and the motion to reconsider is denied.
Plaintiff also requests that discovery be reopened as to the matters addressed in the Court's October 5, 2011 Order, finding no attorney-client privilege or work product doctrine basis to protect an e-mail communication between George Goldsmith and Michael Josephs. The Court will grant Plaintiff leave to conduct discovery on this narrow issue. Plaintiff may depose Defendant Goldsmith regarding the documents which Defendants' claimed were privileged.
3.Clarification of Order on Motions for ...