Yarger et al v. ING Bank fsb

Filing 128

MEMORANDUM ORDER re 120 MOTION for Reconsideration filed by ING Bank fsb is DENIED; 125 MOTION for Leave to File Reply In Further Support Of Motion For Reconsideration filed by ING Bank fsb is DENIED. Signed by Judge Leonard P. Stark on 10/9/12. (ntl)

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l i ' l ' ~!STRICT IN THE UNITED STATES COURT FOR THE DISTRICT IF DELAWARE JONATHAN AND TRUDE YARGER, a married couple, Plaintiffs, Civil v. ction No. 11-154-LPS ING BANK, FSB D/B/A/ ING DIRECT, Defendant. MEMORANDU 1. Defendant ING Bank, fsb d/b/a ING IRECT ("ING") moves for reconsideration of the Court's August 27, 2012 Order (D.I. 116) certi ing a class. (D.I. 120) 2. Pursuant to Local Rule 7 .1. 5, a motio for reconsideration should be granted only "sparingly." The decision to grant such a motion lies squarely within the discretion of the district court. See Dentsply Int'l, Inc. v. Kerr Mfg. C ., 42 F. Supp. 2d 385,419 (D. Del. 1999); Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1 41 (D. Del. 1990). These types of motions are granted only if the court has patently misundersto d a party, made a decision outside the adversarial issues presented by the parties, or made error not of reasoning but of apprehension. See Schering Corp. v. Amgen, Inc., 25 F. Supp. 2d 293, 295 (D. Del. 1998); Brambles, 735 F. Supp. at 1241. "A motion for reco sideration is not properly grounded on a request that a court rethink a decision already made." Smith v. Meyers, 2009 WL 5195928, at *1 (D. Del. Dec. 30, 2009); see also Glendon Energy C v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993). It is not an opportunity o "accomplish repetition of arguments that were or should have been presented to the court previ usly." Karr v. Castle, 768 F. Supp. 1087, 1 I I i l 1093 (D. Del. 1991). A motion for reconsideration ~ay be granted only ifthe movant can show I at least one of the following: (i) there has been an int rvening change in controlling law; (ii) the availability of new evidence not available when the c urt made its decision; or (iii) there is a need to correct a clear error of law or fact to prevent anifest injustice. See Max's Seafood Cafe ex ref. LouAnn, Inc. v. Quinteros, 176 F.3d 669, 677 3d Cir. 1999). However, in no instance should reconsideration be granted if it would not res It in amendment of an order. See Schering Corp., 25 F. Supp. 2d at 295. 3. Having reviewed the parties' submissi~ns, the Court concludes that ING has not met the standards for reconsideration. 4. ING first contends that the "contours fthis class [i.e., the class the Court certified] are both ambiguous and contrary to the pa 'es' intentions," as the certified class includes "individuals who purchased or retained" p icular loans. (D.I. 120 at 1) (emphasis added) The Court disagrees. As Plaintiffs observe, t e class they moved to certify included individuals who purchased or retained loans. (See D .. 44; D.l. 121 at 3 n.1) 5. ING next contends that the Court "mi apprehended material variations between the DCFA and the consumer fraud acts of the other levant States." (D .1. 120 at 1; see also id. at 3-6) Again, the Court disagrees. Perhaps more im ortantly, this dispute was the subject of extensive previous briefing and discussion in the Co rt's earlier opinion. (See D.l. 121 at 4 (citing parties' briefing and Court's opinion)) 6. Finally, ING contends that the Court a cepted Plaintiffs' version of facts which are not, in ING's view, facts. (D.I. 120 at 1; see also id. at 6-10) The Court finds nothing in ING's argument providing a basis for granting the rei efit seeks. 2 l l t i Accordingly, IT IS HEREBY ORDERED T~AT: 1 A. ING's motion for reconsideration (D.I 120) is DENIED. B. ING' s motion for leave to file a reply n further support of its motion for J I reconsideration (D.I. 125) is DENIED. Unless othe ise ordered, briefing on a motion for reconsideration or reargument consists only of the m tion and answer; replies are not permitted. See D. Del. LR 7.1.5(a) ("The Court will determine fl om the motion and answer whether reargument will be granted."). C. The parties shall provide the Court a j int status report, including their proposal(s) for scheduling, no later than October 15, 2012. October 9, 2012 3

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