Free Order on Motion for Reconsideration - District Court of California - California

Case 3:07-cv-02245-BTM-NLS

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Filed 08/22/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Westchester Capital Management, Inc. ("Westchester") and Green & Smith Investment Management LLC ("G&S") have filed a motion for reconsideration of the Court's order appointing New Jersey Carpenters Pension and Benefit Fund as Lead Plaintiff. The v. LEAP WIRELESS INTERNATIONAL, INC., S. DOUGLAS HUTCHESON, MARK H. RACHESKY, AMIN I. KHALIFA and DEAN M. LUVISA, Defendants. LEAP WIRELESS INTERNATIONAL, INC., S. DOUGLAS HUTCHESON, DEAN M. LUVISA, AMIN I. KHALIFA and PRICE WATERHOUSECOOPERS, LLP, Defendants. KENT CARMICHAEL, Individually and on behalf of all others similarly situated, Plaintiff, CASE NO. 08cv0128 BTM(NLS) HCL PARTNERS LIMITED PARTNERSHIP, on behalf of itself and all others similarly situated, Plaintiff, CASE NO. 07cv2245 BTM(NLS) ORDER DENYING MOTION FOR RECONSIDERATION

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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motion for reconsideration is DENIED. "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A party's failure to file

documents in connection with the underlying motion or opposition does not turn late-filed documents into "newly discovered evidence." Id. To prevail on the ground of newly discovered evidence, the movant must show that the evidence "(1) existed at the time of the trial or proceeding at which the ruling now protested was entered; (2) could not have been discovered through due diligence; and (3) was of such magnitude that production of it earlier would have been likely to change the disposition of the case." Duarte v. Bardales, 526 F.3d 563, 573 (9th Cir. 2008). Westchester and G&S argue that the evidence submitted in support of their motion to be appointed lead plaintiff was sufficient to establish that they had the authority to sue on behalf of the funds. The Court disagrees for the reasons set forth in the Court's previous order. Behren declared that Westchester and G&S have unrestricted decision-making authority with respect to the funds that they advise and manage, but did not state that the funds had specifically authorized Westchester and G&S to sue on their behalf. (Behren Decls. of 1/16/08 and 3/19/08). Although Behren stated that he was authorized to "undertake all acts" on Westchester and G&S's behalf, including commencing legal actions, again, Behren failed to state that the funds had specifically authorized Westchester and G&S to sue on their behalf. (Behren Decl. of 1/16/08, ¶ 2.) In support of their motion for reconsideration, Westchester and G&S have submitted additional evidence showing that they have the authority to sue on behalf of the funds, including a Consent Action of the Board of Trustees for The Merger Fund and The Merger Fund VL, a Consent Action of the Trustee of the GS Master Trust, and letters from Chief Operating Officers of investment managers to certain of the funds. However, all of these documents are dated after the Court issued its decision. Westchester and G&S presumably 2

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could have obtained this evidence at an earlier date but failed to do so. Therefore, the evidence is not "newly discovered evidence" and does not warrant reconsideration of the Court's order appointing New Jersey Carpenters Pension and Benefit Fund as Lead Plaintiff.1 Therefore, Westchester and G&S's motion for reconsideration is DENIED.

IT IS SO ORDERED.

DATED: August 22, 2008

Honorable Barry Ted Moskowitz United States District Judge

In Burch v. SLM Corp., 08cv1029 (WHP), Westchester & G&S presented the additional evidence to the Southern District of New York before the court ruled on their motion to be appointed lead plaintiff. Here, the additional evidence has been brought before the Court in conjunction with a motion for reconsideration. Therefore, a different standard applies. 3
07cv2245 BTM(NLS), 08cv0128 BTM(NLS)

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