Nanouk v. The United States Air Force et al

Filing 251

ORDER granting 238 Motion for Reconsideration. The Court's Order at Docket 237 is VACATED. Plaintiff's Motion for Sanction at Docket 225 is DENIED. Signed by Judge Joshua M. Kindred on 8/29/22. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EMILY NANOUK,
Plaintiff,
v.
UNITED STATES OF AMERICA,

Case No. 3:15-cv-00221-RRB
ORDER GRANTING
MOTION TO RECONSIDER

Defendant.

Before the Court at Docket 238 is Defendant’s Motion for Reconsideration.
The Government asks the Court to reconsider its Order at Docket 237, which granted
Plaintiff’s Motion for Sanctions at Docket 225. The Court did not request a response from
Plaintiff. 1
Under Local Civil Rule 7.3(h)(1), “[a] court will ordinarily deny a motion
for reconsideration absent a showing of one of the following: (A) a manifest error of the
law or fact; (B) discovery of new material facts not previously available; or (C) intervening
change in the law.” Here, the Court concludes it made a manifest error of law when it
granted Plaintiff’s Motion for Sanctions.

1

See D. Alaska Loc. Civ. R. 7.3(h)(3).

Under Federal Rule of Civil Procedure 16(f)(B), a court may issue an order
for sanctions “if a party or its attorney[] is substantially unprepared to participate—or does
not participate in good faith—in the [pretrial] conference.”

This Court ordered the

Government to pay Plaintiff’s costs for an unsuccessful judicial settlement conference after
finding that the Government did not participate in good faith. 2 Specifically, the Court took
umbrage with “the disingenuous strategy of requesting a settlement conference, with the
natural implication that it was interested in a meaningful settlement discourse, and then
refusing to engage in that discourse.”3 Without divulging the content of its conversations,
the Court found that the Government did not participate in good faith based on its lack of
willingness to negotiate.
In its Motion for Reconsideration, the Government argues that (1) the Court
made a manifest error of fact regarding its conduct during the settlement conference and
(2) the Order contains a manifest error of law “by basing sanctions on the asserted failure
‘to suggest any meaningful offers.’”4 In support, the Government filed a declaration
outlining the Government’s conversations with the undersigned during the settlement
conference. 5
Candidly, the Court does not fully agree with the Government’s recount.
However, it is unnecessary to determine whether the Court made a manifest error of fact

2

Docket 237 at 7.
Id.
4
Docket 238 at 3 (quoting Docket 237 at 4).
5
To maintain confidentiality, the Government filed the declaration for in camera review
pursuant to D. Alaska Loc. Civ. R. 7.3(g).
3

Nanouk v. United States
Order Granting Motion to Reconsider

Case No. 3:15-cv-000221-RRB
Page 2

because, even with its own version of events, the Court committed a manifest error of law.
The Government’s middling participation during settlement negotiations dismays the
Court, but its conduct does not warrant sanctions. The Court’s finding of bad faith was
inappropriately predicated on the Government’s position during settlement negotiations. 6
In Guillory v. Domtar Industries Inc., the Fifth Circuit upheld sanctions because a party
“concealed its true position that it never intended to settle the case.” 7 The opinion is careful
to note that the district court did not and cannot sanction the party “for failing to make a
serious offer.” 8 Here, the Court found that the Government had no intention of settling the
case entirely because it “refused to suggest any meaningful offers.” 9 Unlike in Guillory,
there is no evidence that the Government “concealed its true position” or otherwise entered
negotiations in bad faith.10 To issue sanctions for the Government’s valuation of its case
would be an abuse of discretion. 11
Because the Court made a manifest error of law in its Order, the
Government’s Motion for Reconsideration is GRANTED.

The Court’s Order at

6

See Docket 237 at 4 (“The Court finds that Defendant did not participate in the
settlement conference in good faith because, simply put, it refused to suggest any meaningful
offers or otherwise engage in good faith negotiations.”).
7
95 F.3d 1320, 1334–35 (5th Cir. 1996).
8
Id.
9
Docket 237 at 4.
10
See 95 F.3d 1320, 1334–35 (5th Cir. 1996). Here, the Government’s settlement brief
was timely and accurately described its position.
11
See Guillory, 95 F.3d at 1334 n.13 (“[S]anctions cannot be justified simply because a
party does not offer what the court considers a ‘bonafide offer’ or ‘serious money.’”); Apelian v.
Allstate Ins. Co., 737 F. App’x 327, 329 (9th Cir. 2018) (finding that district court abused its
discretion by sanctioning Defendant for being unwilling to settle but upholding sanctions against
counsel for being unprepared for settlement conference); Stevenson v. Delta Air Lines, Inc., 2018
WL 11337642, at *2 (N.D. Ga. 2018) (“Defendant’s refusal to increase its initial, low settlement
offer does not provide a justification for sanctioning Defendant or its counsel.”).
Nanouk v. United States
Order Granting Motion to Reconsider

Case No. 3:15-cv-000221-RRB
Page 3

Docket 237 is VACATED. For the reasons stated above, Plaintiff’s Motion for Sanction
at Docket 225 is DENIED.
IT IS SO ORDERED this 29th day of August, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE

Nanouk v. United States
Order Granting Motion to Reconsider

Case No. 3:15-cv-000221-RRB
Page 4