Davis v. Simon Property Group Inc et al

Filing 32

ORDER granting 21 Motion for Reconsideration and vacating the 20 Judgment and 19 Order granting the motion for summary judgment. Signed by Judge Brian S. Miller on 3/21/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
BRENDA DAVIS
v.

PLAINTIFF
CASE NO. 4:11CV00506 BSM

SIMON PROPERTY GROUP, INC. d/b/a
MCCAIN MALL, et al.

DEFENDANTS

ORDER
Plaintiff’s motion for reconsideration [Doc. No. 21] of the order granting defendants’
motion for summary judgment [Doc. No. 19] is granted.
Plaintiff filed suit against defendants in state court on March 9, 2009, and the case was
removed and assigned case number 4:09-cv-00242. Defendants moved for summary
judgment on May 27, 2010, and on June 10, 2010, plaintiff requested a voluntary non-suit,
to which defendants objected. The request for non-suit was granted on June 22, 2010, in an
order providing that in the event plaintiff re-filed the case, she would have five days in which
to respond to defendants’ pending motions for summary judgment.
Plaintiff re-filed on June 22, 2011, [Doc. No. 1]. Defendants Simon Property Group,
Inc. [Doc. No. 13] and IPC International Corporation [Doc. No. 16] moved to dismiss on July
19, 2011, asserting that plaintiff failed to respond to the motions for summary judgment
within five days of refiling as required by the non-suit order. Those motions were granted
and the case was dismissed on July 20, 2011 [Doc. No. 19].
Plaintiff seeks reconsideration [Doc. No. 21], essentially asserting that her lawyer
failed to recognize that the June 22, 2010, non-suit order required plaintiff to respond to the

motions for summary judgment pending at the time of the non-suit. Indeed, plaintiff seems
to argue that her counsel understood that defendants would have to re-file their motions for
summary judgment and that plaintiff would then be given five days in which to respond. See
plaintiff’s motion to reconsider summary judgment, [Doc. No. 21] at ¶¶ 2-3; brief in support
of plaintiff’s motion for reconsideration, [Doc. No. 22] at 1.
The June 22, 2010, non-suit order clearly required plaintiff to respond to the motions
for summary judgment pending at the time the order was entered within five days of refiling
her complaint. Further, it is clear that plaintiff failed to do so. That being the case, in
determining whether to reconsider the summary judgment order, the analysis should not stop
there. This is true because courts have fairly broad discretion in deciding whether motions
for reconsideration should be granted.
Looking closely at the facts herein, it seems fairly clear that plaintiff’s failure to
comply with the non-suit order was unintentional. Indeed, it is very clear that it was due to
counsel’s error. It also seems pretty clear that plaintiff’s failure to respond to defendants’
motions for summary judgment within five days of re-filing did not prejudice defendants.
Moreover, plaintiff submitted her response to the motions for summary judgment on July 26,
2011 [Doc. Nos. 22, 23, 24] when she filed her motion for reconsideration.
Therefore, plaintiff’s motion for reconsideration [Doc. No. 21] is granted and the
order granting summary judgment [Doc. No. 19] and the judgment [Doc. No. 20] entered
herein on July 25, 201l, are vacated. Defendants’ motions for summary judgment will now
be taken up and decided based on their merits. Further, counsel for the parties are instructed
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to communicate and to then contact Betty Tyree at 501-604-5400 and provide her with dates
that counsel are available to conduct a scheduling conference regarding the setting of a trial
date and all necessary deadlines.
IT IS SO ORDERED this 21st day of March 2012.
________________________________
UNITED STATES DISTRICT JUDGE

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