Cooper v. Escambia County Commission et al

Filing 59

ORDER denying 57 Motion for Reconsideration of District Judge Order. Signed by Magistrate Judge William E. Cassady on 8/5/2011. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JOANN P. COOPER,

:

Plaintiff,

:

vs.

:

ESCAMBIA COUNTY COMMISSION,
et al.,

CA 10-0330-CB-C

:
:

Defendants.
ORDER
JoAnn Cooper has filed a motion for reconsideration of the order signed by the
undersigned on August 1, 2011—and e-mailed to the parties on August 2, 2011—which
denied her motion to amend scheduling order (Doc. 57). This motion is DENIED
pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.2(a).
Cooper’s motion for reconsideration reads, almost in its entirety, as follows:
2.
Cooper seeks this extension to take depositions, with
requests for production attached, of four individuals and does not expect []
the total time of these depositions to exceed 8 hours. Before receiving the
Court’s Order denying the requested extension (which is dated August 1,
2011 but which was not e-filed and received until late in the day on August
2, 2011), the undersigned delivered Notices of Deposition to the County
pursuant to agreed-upon dates, not knowing whether the extension would
be approved. If the extension is approved, the requested depositions
would be noticed for August 18 and 24. A portion of the proposed
Requests for Production attached to the Deposition Notices are for the
documents or other evidence the County and the Sirmons mentioned in
their initial disclosures but none of which have been provided.
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3.
Two extra-ordinary circumstances warrant the requested
extension: the procedural posture of this case, and the enormous burden to
the Appellant in arranging to come from Nashville, Tennessee to south
Alabama to participate in discovery proceedings.
4.
Contrary to the Magistrate Judge’s findings of fact, the
procedural “dust” in this case regarding which, if any, claims would
survive the Counter-Defendants various Motions to Dismiss did not settle
until July 5, 2011, less than one month before the discovery cutoff. The
County and the Sirmons filed Answers on July 19, 2011, less than two
weeks before the discovery cutoff.
5.
In other words, the Appellant only learned what contentions
were at issue, and therefore which issues to address in discovery, less than
two weeks before the cutoff. For example, only on July 19, 2011 did
Appellant learn that the Sirmons deny knowledge of the existence of
Christmas Tree Lane and even deny owning the property on which
Christmas Tree Lane is situated. Given these blanket denials, the Appellant
feels the most efficient method of discovery is to take depositions with
attached requests for production.
6.
Cooper commenced her efforts to schedule depositions in
plenty of time to complete the requested discovery, at least if the other
parties had cooperated the way she did. She began at the same time as the
County and in the same manner. The notice of deposition mentioned in the
Court’s order was filed pursuant to an agreed-upon date, which agreement
was reached simply by response to the County’s e-mail request for dates
for her availability. All it took for the County to obtain her deposition was
to ask by e-mail, not some unilateral action on their part.
7.
Conversely, when the undersigned made the same request in
the same manner, (by e-mail to both Anna Scully and Jim Rossler), they
both initially ignored that first request. Eventually, the County indicated
that it would work to get the requested depositions scheduled but the
Appellant cannot be present on just any day, cannot simply pick up and
drive 6 hours on a moment’s notice, and certainly cannot afford to
unilaterally schedule a deposition, undertake the expense of arranging for
a court reported to come to Atmore, AL from Mobile or Montgomery and
hope that someone shows up. If no one did, the expenses (not to mention
the stress and fatigue that trip causes the 62 year old Appellant) related to
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the trip from Tennessee and court reporter would be for naught and would
have to be repeated.
8.
The County is not opposed to extending the discovery and
dispositive motion deadlines, and on Monday, August 1, 2011 provided
dates for the depositions at the next time the Appellant could be present,
the week of August 14, 2011, less than a month after the County and the
Sirmons filed their answers. The County also indicated that the requested
depositions should take place before any ADR is attempted.
9.
The Sirmons’ attorneys simply declined to return phone calls
or answer e-mails concerning the matter. It was impossible to “confer” as
required by the Court’s standing order because the Sirmons would not
reply one way or the other. The only opportunity to “confer” happened at
Cooper’s July 20 deposition, when attorney Wasden face-to-face said he
would let the undersigned know the following day whether his client was
available during the time Cooper was present in Alabama for her
deposition. Attorney Wasden even went so far as to suggest a convenient
location in Atmore to hold the depositions.
10.
That in-person conference was the last communication from
the Sirmons regarding depositions until August 2, when Anna Scully
finally replied by e-mail that she had been out of the office due to a family
illness and was conferring with the Sirmons about the provided dates.
11.
The only discovery to do is simply to take approximately 8
hours worth of depositions involving 4 deponents. The extension would
not delay the pre-trial conference, the trial date or any dates subsequent to
the time of the requested extension.
12.
In summary, the contentions in this case have only been put
in issue since July 19, 2011. Appellant appeared for her deposition the
following day and the undersigned wrongfully assumed that an in-person
conference would resolve the matter but could not get a response from the
Sirmons’ attorneys before Appellant had to return to Tennessee. The
physical and financial cost associated with unilaterally noticing a
deposition of someone who may not show up is simply too great but the
undersigned trusts now that attorney Scully has returned and had an
opportunity to confer with her clients, that, subject to the Court’s approval,
all the discovery Appellant intends to conduct would be completed on
August 18 and 24, 2011.
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(Id. at 1-4 (internal citations omitted).) The undersigned has set forth almost the entirety
of Cooper’s motion for reconsideration because nowhere in the motion does the movant
set forth the proper legal framework for requesting reconsideration or how her motion
falls within that framework.
The Magistrate Judge notes that motions to reconsider generally fall within the
purview of Rule 60(b) of the Federal Rules of Civil Procedure, see Preserve Endangered
Areas of Cobb’s History, Inc. v. United States Army Corps of Engineers, 916 F.Supp. 1557, 1560
(N.D. Ga. 1995) (“[T]he term ‘motion for reconsideration’, as such, does not appear in the
Federal Rules of Civil Procedure. The title of Fed.R.Civ.P. 60(b), under which a so-called
motion for reconsideration may be brought, further attests to its extraordinary nature . . .
. ‘[Rule 60(b)] is “properly invoked where there are extraordinary circumstances, or
where the judgment may work an extreme and undue hardship” . . . .’”), judgment aff’d,
87 F.3d 1242 (11th Cir. 1996), as well as Fed.R.Civ.P. 59(e), see Pennsylvania Ins. Guar.
Ass’n v. Trabosh, 812 F.Supp. 522, 524 (E.D. Pa. 1992) (“A motion for reconsideration of a
final judgment will generally be construed as a motion under Federal Rule of Civil
Procedure 59(e) to alter or amend the judgment if the motion does not cite a specific
federal rule.”).1

The standard for reconsideration under both rules is the same. Compare Johnston v.
Cigna Corp., 789 F.Supp. 1098, 1101 (D. Colo. 1992) (“A Fed.R.Civ.P. 59(e) motion to alter or
amend judgment may properly be cast in the form of a motion to reconsider. . . . There are three
major grounds that justify reconsideration: (1) an intervening change in the controlling law; (2)
the availability of new evidence; and (3) the need to correct clear error or prevent manifest
injustice.”), aff’d, 14 F.3d 486 (10th Cir. 1993), cert. denied, 514 U.S. 1082, 115 S.Ct. 1792, 131
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In the interests of finality and conservation of scarce resources, reconsideration of
an order is an extraordinary remedy which is to be employed sparingly. United States v.
Bailey, 288 F.Supp.2d 1261, 1267 (M.D. Fla. 2003), aff’d, 419 F.3d 1208 (11th Cir. 2005);
Pennsylvania Ins. Guar. Ass’n, supra, 812 F.Supp. at 524; see also Spellman v. Haley, 2004 WL
866837, *2 (M.D. Ala. 2002) (“[L]itigants should not use motions to reconsider as a
knee-jerk reaction to an adverse ruling.”). Nonetheless, reconsideration is proper when
newly discovered evidence is brought to the court’s attention or clear error has been
shown. See Fed.R.Civ.P. 60(b)(2); Caisse Nationale de Credit Agricole v. CBI Industries, Inc.,
90 F.3d 1264, 1269 (7th Cir. 1996) (“Motions for reconsideration serve a limited function:
to correct manifest errors of law or fact or to present newly discovered evidence.”);
Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003)
(“A motion to reconsider is only available when a party presents the court with evidence
of an intervening change in controlling law, the availability of new evidence, or the need
to correct clear error or manifest injustice.”). In considering Cooper’s request, however,
the Court bears in mind that such motions are not a platform to relitigate arguments
previously considered and rejected. See Lazo v. Washington Mutual Bank, 2001 WL 577029,
*1 (9th Cir. 2001) (motion to reconsider is properly denied where movant merely
reiterates meritless arguments). Moreover, motions to reconsider may not be used to set
forth new theories of law that could have been raised previously. See Mays v. United
L.Ed.2d 720 (1995), with PEACH, supra, 916 F.Supp. at 1560 (“[T]he [Rule 60(b)] motion [for
reconsideration] should be reserved for certain limited situations, namely the discovery of new
evidence, an intervening development or change in controlling law, or the need to correct a clear
error or prevent a manifest injustice.”).

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States Postal Service, 122 F.3d 43, 46 (11th Cir. 1997). Finally, “’a motion for
reconsideration is not an opportunity for the moving party and their counsel to instruct
the court on how the court “could have done it better” the first time.’” Deerskin Trading
Post, Inc. v. United Parcel Service of America, Inc., 972 F.Supp. 665, 674 (N.D. Ga. 1997),
quoting PEACH, supra, 916 F.Supp. at 1560.
Cooper’s wholesale failure to set forth a proper basis for the undersigned’s
reconsideration of the August 1, 2011 order (entered on the docket, August 2, 2011),
alone, requires that the reconsideration motion (Doc. 57) be DENIED. In addition, the
Court notes that Cooper has certainly set forth no newly discovered evidence which
warrants a reconsideration of the undersigned’s order nor has the movant set forth an
intervening change of controlling law or a manifest error of law made by the
undersigned warranting reconsideration. Finally, Cooper has not shown through the
present motion that this Court made a clear error of fact that it need correct to prevent
manifest injustice. In this regard, Cooper’s only suggestion that the undersigned made
an error of fact is her statement that “[c]ontrary to the Magistrate Judge’s findings of fact,
the procedural ‘dust’ in this case regarding which, if any, claims would survive the
Counter-Defendants various Motions to Dismiss did not settle until July 5, 2011, less
than one month before the discovery cutoff.” (Doc. 57, at ¶ 4.)2 Cooper, of course, has
taken the undersigned’s initial finding of fact out of context because the undersigned’s
The majority of Cooper’s motion merely consists of counsel’s elaboration of the
difficulties he experienced in trying to procure deposition dates from defense counsel. (See Doc.
57, at ¶¶ 6-10; compare id. with Doc. 48.)

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finding—a correct finding, by the way—was that “[o]nce the dust settled and a decision
was made that the case would not be remanded to the Circuit Court of Escambia
County, Alabama or dismissed (compare Docs. 9-10 & 12 with Doc. 19), the undersigned
ordered the parties to file a Rule 26(f) report (Doc. 22).” (Doc. 53, at 1-2.) The
undersigned’s reference to the fact that the case would not be dismissed, as apparent
from the documents cited to in support thereof, was directed to the County’s argument
that the case was due to be dismissed for lack of jurisdiction (compare id. with Doc. 12). It
was based upon this fact (that is, resolution of the jurisdictional issue), the fact that the
undersigned adopted the parties’ suggested discovery cutoff date of August 2, 2011
(compare Doc. 25, ¶ 4 with Doc. 27, at ¶ 2), and Cooper’s inability to establish due
diligence in complying with the scheduling order, as well as exceptional circumstances
supporting a modification of that order, that the undersigned denied Cooper’s motion to
amend scheduling order. (See Doc. 53.) The “procedural dust” about which Cooper now
speaks in her motion for reconsideration, was a result of nothing other than her own
making in filing her amended complaint (Doc. 24; compare id. with Docs. 32, 34-35, 37 &
43) and certainly in no way establishes why she was unable to discern more than seven
days before the discovery cutoff date that she would be unable to timely complete
discovery and the reasons therefor.3 Accordingly, Cooper has not set forth any basis for

The undersigned need address certain suggestions made by Cooper in the motion for
reconsideration. First, the suggestion that she “only learned what contentions were at issue, and
therefore which issues to address in discovery, less than two weeks before the [discovery]
cutoff[]” (Doc. 57, at ¶ 5) is belied by her earlier statement that “[a] portion of the proposed
Requests for Production attached to the Deposition Notices are for the documents or other

3

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evidence the County and the Sirmons mentioned in their initial disclosures but none of which
have been provided.” (Id. at ¶ 2.) At the very least, then, Cooper could have requested
production of such documents from the County defendants and the Sirmons through written
discovery propounded after those disclosures were made. (Compare id. with Doc. 38 (initial
disclosures by county defendants made on March 14, 2011).) Moreover, in truth, given the nature
of this case and Cooper’s position throughout it, she certainly could have deposed the county
defendants and the Sirmons before receiving their answers to her amended complaint; nothing
would have prevented her from questioning the other parties at length about the facts
surrounding her amended complaint, the claims made therein, and their defenses to same.
Second, the suggestion that she could not unilaterally notice the depositions of the
county defendants and the Sirmons and expend money for the taking of same merely “in
hope[]s” that someone would show up (see Doc. 57, at ¶ 7) ignores the fact that a party who fails
to attend a properly-noticed deposition will be required, upon proper motion, to pay the
expenses caused by such failure to attend, see Fed.R.Civ.P. 37(d)(1)(A)(i) (“The court where the
action is pending may, on motion, order sanctions if: [] a party or a party’s officer, director, or
managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being
served with proper notice, to appear for that person’s deposition[.]”). Third, as it relates to
Cooper’s pursuit of discovery, particularly scheduling depositions, the undersigned is
unfamiliar with any requirement that Cooper herself has to personally “participate in [all]
discovery proceedings[]” (Doc. 57, at ¶ 3), including every deposition scheduled. Cf.
Fed.R.Civ.P. 30(g)(1) (“A party who, expecting a deposition to be taken, attends in person or by
an attorney may recover reasonable expenses for attending, including attorney’s fees, if the
noticing party failed to: [] attend and proceed with the deposition[.]”). Fourth, the
“conferencing” requirement referenced in this Court’s Rule 16(b) scheduling order (Doc. 27, at 3)
pertains solely to discovery motions, not to deposition notices and the scheduling of depositions
(compare id. (“The following requirements pertain to discovery motions filed in this Court: a.
Conferencing by Counsel. The conferencing requirement of Rules 26(c)(1), 37(a)(1), and
37(d)(1)(B), Fed.R.Civ.P., will be strictly enforced. . . . Any such motion not containing the
required certification will be stricken.”) with Doc. 57, at ¶ 9 (“It was impossible to ‘confer’ as
required by the Court’s standing order because the Sirmons would not reply one way or the
other.”)).
Finally, any suggestion by Cooper that she cannot take any depositions in this case
without receiving this Court’s approval of her requested extension (see Doc. 57, at ¶ 2 (“Before
receiving the Court’s Order denying the requested extension . . ., the undersigned delivered
Notices of Deposition to the County pursuant to agreed-upon dates, not knowing whether the
extension would be approved. If the extension is approved, the requested depositions would be
noticed for August 18 and 24.”)) is incorrect. Parties can, and do, engage in discovery by consent
after a discovery deadline has expired. Therefore, if plaintiff has an agreement with the County
(and, for that matter, the Sirmons) regarding certain depositions, this Court certainly has no
problem with the parties conducting such consensual discovery. It is simply this Court’s position
that it will not arbitrate any disputes that may arise during the course of such consensual
discovery.

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the undersigned to reconsider the order dated August 1, 2011 (and entered August 2,
2011).
In light of the foregoing, Cooper’s motion for reconsideration (Doc. 57) is
DENIED.
DONE and ORDERED this the 5th day of August, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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