Opinion
No. 05-16671.
Argued and Submitted July 9, 2007 San Francisco, California.
July 26, 2007.
Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding, D.C. No. CV-03-01200-PMP.
Before: HUG, RYMER, and FISHER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In 2003, Appellee Jaynes Corp. ("Jaynes") filed for declaratory relief in the Eighth Judicial District Court in Clark County, Nevada, to determine the obligations of the parties under an insurance policy involving an "additional insured" endorsement. Appellant Zurich American Insurance Co. ("Zurich") removed the case to the United States District Court for the District of Nevada. In 2004, Jaynes filed a motion for summary judgment and Zurich filed a cross-motion for summary judgment. In March 2005, Judge David W. Hagen entered judgment in favor of Zurich. Jaynes filed a Motion to Vacate Order ("Motion"). After briefing Judge Hagen retired and the case was reassigned to Judge Philip M. Pro. Judge Pro granted the Motion in favor of Jaynes. Zurich appeals. We now affirm and hold that Judge Pro did not abuse his discretion in granting the Motion.
First, Judge Pro did not err in looking at the substance of Jaynes' Federal Rule of Civil Procedure 59(e) motion. See Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005) (stating that a court must look beyond the motion's caption to its substance); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1249-50 (9th Cir. 1982) (en banc). Judge Pro did not err in construing the Motion as a motion for reconsideration under Rule 59(e).
Second, the "law of the case" doctrine does not apply. "[A] district court may reconsider its prior rulings so long as it retains jurisdiction over the case." United States v. Smith, 389 F.3d 944, 948 (9th Cir. 2004). "The law of the case doctrine is `wholly inapposite' to circumstances where a district court seeks to reconsider an order over which it has not been divested of jurisdiction." Id. at 949 (citations omitted). Here, the district court never divested itself of jurisdiction over the case. Judge Pro assumed the position of Judge Hagen when Judge Hagen retired and therefore it was as if the Motion asked Judge Pro to reconsider his own motion. See generally Fed.R.Civ.P. 63 (addressing the inability of a judge to proceed).
Finally, Judge Pro did not abuse his discretion in granting the motion for reconsideration. A motion for reconsideration should be granted if the district court previously "committed clear error." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Judge Pro's order demonstrates his conclusion that Judge Hagen's order was based on a clearly erroneous error of law. See McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (per curium) (explaining that the clear error standard in motions for reconsideration can refer to clear errors of law).
Judge Pro's order vacated Judge Hagen's previous judgment and order and declared that the additional insured endorsement required Zurich to indemnify and defend Jaynes for Jaynes' own negligence. The key provision of the endorsement provided that Jaynes would be an additional insured "only with respect to liability arising out of [Las Vegas Electric's] ongoing operations performed for that insured." Las Vegas Electric's operations were still ongoing and thus Jaynes remained covered as an additional insured. Although Nevada does not have a case interpreting the "arising out of" language, Judge Pro's interpretation corresponds with a clear majority of the opinions in other states and he reasonably concluded that it is likely the interpretation that the Nevada Supreme Court would adopt. AFFIRMED.
Zurich's remaining arguments fail as well.