CYNTHIA IMBROGNO, United States Magistrate Judge
BEFORE THE COURT is Plaintiff's Motion for Reconsideration filed February 7, 2002. (Ct. Rec. 100.) Attorney Robert E. Kovacevich represents Plaintiff; attorney W. Carl Hankla of the Tax Division, Civil Trial Section, Western Region, U.S. Department of Justice, represents Defendant. The parties have consented to proceed before a magistrate judge. (Ct. Rec. 2.)
On January 28, 2002, the court granted Defendant's Motion for Summary Judgment, concluding Plaintiff had not presented sufficient evidence to raise a material question of fact whether there was reasonable cause for its failure to timely deposit and pay certain taxes. Judgment was entered for Defendant and Plaintiff's Complaint and claims were dismissed with prejudice. Plaintiff then filed this Motion for Reconsideration and Defendant timely responded. After a review of the arguments and briefs submitted by the parties, the court DENIES the Motion for Reconsideration.
Plaintiff presents four grounds for reconsideration. Those include (1) the court's Order did not enter an amount of the penalty at issue; (2) the court did not rule on Defendant's Motion to Strike as to whether the Declaration of Donna Whitney was considered or stricken; (3) Plaintiff raised the issue of royalties in the initial administrative review filed on May 4, 1994, through a citation to Hendrick Ranch Royalties v. Commissioner, 1 T.C.M. 794 (1943), thus preserving the issue of whether payments to attorney Russell Van Camp were more properly characterized as royalties rather than payment or wages for legal services; and (4) declarations of Van Camp and Whitney raised material issues of fact as to the availability of funds for payment of the disputed taxes. Defendant responds none of these arguments meets the requirements of reconsideration available under Fed.R.Civ.P. 59.
Ordinarily, "[r]econsideration is appropriate [under Rule 59(e)] 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 District No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). If filed within ten days of the date of judgment, a "motion for reconsideration" is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure Rule 59(e). See United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992). A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Here, the Motion was filed within the ten-day period.
Plaintiff has not presented new evidence or an intervening change in controlling law. As to the first ground asserted by Plaintiff, the court referenced to an amount at issue of $9,052.49. (Ct. Rec. 1, at 5, line 1.) As to the second ground, although not specifically referenced in the opinion, Ms. Whitney's Declaration was considered by the court. Accordingly, Defendant's Motion to Strike was denied. The declaration refers to the number of overdrafts by Plaintiff during the time at issue, but that information also was available in the bank statement previously submitted to the court. As to her other statements regarding inability to meet payroll or pay creditors on time during the period at issue, that information also was before the court through other sources.
Defendant asserts that, although the Hendrick case was cited at the administrative level, it was relied on by Plaintiff for the proposition that mental illness could be reasonable cause for abatement of penalties. In July 1996, following a bench trial, this court determined Mr. Van Camp was not an independent contractor, but was an employee of the corporation. (Ct. Rec. 36.) That ruling was affirmed by the Ninth Circuit. The court will not now consider the legal issue of whether payments to Mr. Van Camp were royalties and not wages. Finally, all the facts submitted by Mr. Van Camp in response to Defendant's Motion for Summary Judgment were construed in a light most favorable to him. Notwithstanding, the court concluded, in light of the legal standards necessary to find reasonable cause, those facts and inferences were deficient and Defendant was entitled to summary judgment. Accordingly, Plaintiff's Motion for Reconsideration is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant.