El-Saba v. University of South Alabama

Filing 60

ORDER denying 59 MOTION for Reconsideration of Magistrate Judge Order re 58 Order on Motion to Compel Discovery by Aed El-Saba. Signed by Magistrate Judge Katherine P. Nelson on 8/11/2016. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AED EL-SABA,
Plaintiff,

)
)
)
v.
)
)
UNIVERSITY OF SOUTH ALABAMA, )
Defendant.
)

CIVIL ACTION NO. 15-00087-KD-N

ORDER
This action is before the Court on the motion to reconsider (Doc. 59) filed by
Plaintiff Aed El-Saba, which requests that the Court vacate its previous Order (Doc.
58) denying El-Saba’s motion to compel discovery, re-open certain depositions,
disqualify counsel, and extend the deadline for dispositive motions (Doc. 56)
(hereinafter, “the motion to compel, etc.”) both as untimely and for failure to include
a good-faith conferencing certification.
“In the interest of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is
employed sparingly.” Gougler v. Sirius Prod., Inc., 370 F. Supp. 2d
1185, 1189 (S.D. Ala. 2005) (citation omitted). Generally, “[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.”
Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355
(M.D. Ala. 2003). See also Douglas Asphalt Co., v. QORE, Inc., 657
F.3d 1146, 1151–1152 (11th Cir. 2011). However, “[m]otions for
reconsideration should not be used to raise legal arguments which
could and should have been made before the judgment was issued [ ]”
Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir.
2001) (citations omitted), and “cannot be brought solely to relitigate
issues already raised [,]” Harris v. Corrections Corp. of America, 2011
WL 2672553, *1 (11th Cir. Jul.22, 2011).

Bumpers v. Austal, U.S.A., L.L.C., Civil Action No. 08-0155-KD-N, 2015 WL 162610,
at *1 (S.D. Ala. Jan. 13, 2015).
Here, the only ground for reconsideration that is reasonably apparent from
the motion is “the need to correct clear error or manifest injustice.” However, ElSaba has failed to demonstrate that either clear error or manifest injustice requires
reconsideration of the Court’s prior determination that he failed to show diligence in
bringing the motion to compel, etc., almost two weeks after the deadline for
discovery had passed.
El-Saba claims that the Defendant’s amended privilege log produced on July
14, 2016, four days before the discovery cutoff, “completely, unexpectedly exploded
the scope and significance of the required motion practice…”

(Doc. 59-1 at 4).

Initially, El-Saba’s counsel, “not wanting to move for a second modification of the
scheduling order, had thought he could timely cope with any assertions of privileges
and problems with Alam’s deposition” and “that it would not be necessary to file a
motion for leave to file the motion to compel out of time, nor one to modify the
scheduling order to take any depositions that might be compelled.” (Id.). However,
due to other work commitments and the difficulty “Eleventh Circuit privilege law
proved,” “[a]s the deadline loomed, it became obvious that counsel could not meet
it.” (Id. at 5).
Accepting these representations as true, they show that, prior to the
discovery cutoff, El-Saba’s counsel was aware (1) significant discovery issues had
been raised very close to the discovery deadline, and (2) he would not be able to

complete his motion to compel, etc. prior to the deadline. In light of this, El-Saba
has given no reasonable excuse why he did not move to extend the discovery
deadline on the basis of these consideration, rather than let it pass without
comment as he continued to draft the motion to compel, etc., over the course of
almost two additional weeks as the deadline for dispositive motions loomed. These
concerns “could and should have been” raised prior to close of discovery; at the very
least, they could have been raised contemporaneous with the motion to compel, etc.
to excuse its tardy filing.

As was pointed out in the Order El-Saba seeks

reconsideration of, the scheduling order made clear that discovery motions were
expected to be brought “to give adequate time for the court to consider them” – at
the very least, no later than the discovery deadline. (See Doc. 58 at 1). Moreover,
counsel for El-Saba acknowledges anticipating that at least a “limited extension” of
discovery would be “a necessary component of the grant of the motion.” (Doc. 59-1
at 6 – 7). Indeed, the motion to compel, etc. requested, in addition to the production
of additional documents, the reopening of depositions for no less than five
deponents. (See Doc. 56).1

El-Saba argues that the Court should find “excusable neglect” for his tardy filing after
consideration of the five-factor test in Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380 (1993). However, Federal Rule of Civil
Procedure 16(b)(4)’s “good cause” standard applies when excusing a motion filed after a
scheduling order deadline, rather than the “excusable neglect” standard in Federal Rule of
Civil Procedure 6(b). See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2 (11th Cir.
1998) (per curiam).

1

As El-Saba has not given the Court reason to reconsider its order denying his
motion to compel, etc. as untimely, it is ORDERED that his motion to reconsider
(Doc. 59) is DENIED.2
DONE and ORDERED this the 11th day of August 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

The motion to reconsider also provides the good-faith conferencing certification that was
lacking in the motion to compel, etc., explaining that it was inadvertently omitted. (See Doc.
59-1 at 7).

2