Potter v. Meza et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Phillip Potter,
Plaintiff,
v.
Alane Ortega, et al.,
Defendants.
No. CV-25-00663-PHX-DWL
ORDER
In Count Two of his First Amended Complaint, pro se Plaintiff asserted a pre-
enforcement First Amendment facial challenge to A.R.S. § 13-2921, Arizona’s harassment
statute, and named AG Mayes as the sole defendant in relation to that claim. (Doc. 14
¶¶ 208-14.) In a January 6, 2026 order, the Court granted AG Mayes’s motion to dismiss
Count Two but also granted Plaintiff limited leave to amend. (Doc. 100 at 31-36, 66.)
Plaintiff then filed a Second Amended Complaint reasserting Count Two against AG
Mayes (Doc. 104 ¶¶ 208-20), AG Mayes filed another motion to dismiss Count Two (Doc.
110), and Plaintiff filed a motion for a preliminary injunction premised on Count Two
(Doc. 124). On July 20, 2026, the Court issued a 45-page order that granted AG Mayes’s
motion to dismiss, denied Plaintiff’s motion for a preliminary injunction, and dismissed
Count Two without leave to amend. (Doc. 125.) That same day, the Clerk entered
judgment. (Doc. 126.)
Now pending before the Court is Plaintiff’s motion for reconsideration of the July
20, 2026 order, which he characterizes as a Rule 59(e) motion to alter or amend the
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judgment. (Doc. 127.) For the reasons that follow, the motion is denied.
Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.” Id. “Although the text of Rule 59(e)
does not identify the standard for evaluating such a motion, the view prevailing in the
circuits is that motions to alter or amend the judgment are generally appropriate only in
four situations: (1) to correct a manifest error of fact or law; (2) to incorporate newly
discovered and previously unavailable evidence; (3) to prevent manifest injustice; and (4)
to address an intervening change in controlling law.” Gonzalez v. US Hum. Rts. Network,
2024 WL 149979, *4 (D. Ariz. 2024) (cleaned up). See generally Allstate Ins. Co. v.
Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (agreeing that these are the “four basic
grounds upon which a Rule 59(e) motion may be granted”). “[T]he rule offers an
extraordinary remedy, to be used sparingly in the interests of finality and conservation of
judicial resources.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)
(cleaned up).
These standards are not satisfied here. For the most part, Plaintiff’s motion simply
reiterates arguments the Court previously considered and rejected after careful
consideration. But “a Rule 59(e) motion is not an opportunity for a party to get a ‘second
bite at the apple’ in order to re-argue an issue already presented to the court . . . . Nor
should a motion for reconsideration be used to ask the court to rethink what it has already
thought through.” Romo v. City of Los Angeles, 2024 WL 5227411, *1 (C.D. Cal. 2024),
report and recommendation adopted, 2024 WL 5220883 (C.D. Cal. 2024) (citations
omitted). In a related vein, although Plaintiff places heavy emphasis on the Arizona
Supreme Court’s April 2026 decision in Hernandez v. Loarca, 587 P.3d 1266 (Ariz. 2026),
and suggests that Hernandez qualifies as “the new controlling law” (Doc. 127 at 14),
Plaintiff ignores that he cited Hernandez in his motion for preliminary injunction (Doc.
124) and that the Court discussed Hernandez at length in the July 20, 2026 order (Doc. 125
at 21, 23, 24, 30 n.11, 31, 34 n.14). As a result, this is not a situation involving the sort of
intervening change in the law contemplated by Rule 59(e). Finally, it appears that
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Plaintiff’s motion also includes some new arguments he seeks to raise for the first time,
such as the argument that A.R.S. § 13-2921 does not necessarily require “repeated”
conduct. (Doc. 127 at 2-3.) Although this was one of the grounds for dismissal identified
in the January 6, 2026 order (Doc. 100 at 32) and in AG Mayes’s motion to dismiss Count
Two of the SAC (Doc. 110 at 3-4, 7), Plaintiff did not address it in his response to AG
Mayes’s motion to dismiss (Doc. 115).1 “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.” Kona Enters., Inc., 229 F.3d at 890.2
Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 127) is denied.
Dated this 28th day of August, 2026.
1 In addition to being an improper new argument raised for the first time in a motion
for reconsideration, this argument also fails on the merits. It is true that § 13-2921(A)
defines harassment as either “knowingly and repeatedly commit[ting] an act or acts that
harass another person” or “knowingly commit[ting] any one of” five enumerated acts.
However, Plaintiff has never asserted that he intends to commit one of those enumerated
acts, which are: “(1) Contacts or causes a communication with another person by verbal,
electronic, mechanical, telegraphic, telephonic or written means. 2. Continues to follow
another person in or about a public place after being asked by that person to desist. 3.
Surveils or causes a person to surveil another person. 4. Makes a false report to a law
enforcement, credit or social service agency against another person. 5. Interferes with the
delivery of any public or regulated utility to another person.” Instead, Plaintiff alleged that
his “intended course of conduct” was simply “to file pleadings, court papers, and other
documents in active litigation.” (Doc. 104 ¶ 216.) Thus, Plaintiff’s intended course of
conduct only potentially implicated the first prong of § 13-2921(A), which requires
“repeated[]” acts.
2 The same can be said for Plaintiff’s argument that AG Mayes’s disavowal cannot
be a “mere litigation position.” (Doc. 127 at 9.) AG Mayes argued in her motion to dismiss
that “the Court already found AG Mayes not to have disavowed enforcement . . . [and]
noted . . . AG Mayes’s position is tantamount to disavowal of enforcement of Plaintiff’s
specific theory.” (Doc. 110 at 11-12, citations omitted.) Although the case Plaintiff cites
in his pending motion for the proposition that a disavowal cannot be made as part of a
litigation position is from 2024 (Doc. 127 at 9), Plaintiff did not raise it in his response to
AG Mayes’s motion to dismiss (Doc. 115).
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