Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.

Filing 197

ORDER denying 190 Defendant Wells Fargo N.A.'s Motion for Reconsideration; granting 190 Defendant's Motion for Leave to File Sur-Reply to Plaintiffs' Reply to Wells Fargo's Response to Plaintiffs' Motion to Compel. On or before August 22, 2014, Defendant shall file a surreply not to exceed seven pages. Signed by Magistrate Judge Carol Mirando on 8/19/2014. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, BRIAN
BRUCE BERLINGER and HEATHER
ANNE BERLINGER, as Beneficiaries
to the Rosa B. Schwiker Trust and all
of its related trusts,
Plaintiffs,
v.

Case No: 2:11-cv-459-FtM-29CM

WELLS FARGO, N.A. AS
SUCCESSOR TO WACHOVIA
BANK, N.A.,
Defendant/Third
Party Plaintiff
BRUCE D. BERLINGER and
SUE CASSELBERRY,
Third Party Defendants
_____________________________________
ORDER
Before the Court is Defendant Wells Fargo N.A.’s (“Wells Fargo”) Motion for
Reconsideration and Motion for Leave to File Sur-Reply to Plaintiffs’ Reply to Wells
Fargo’s Response to Plaintiffs’ Motion to Compel (Doc. 190) and Plaintiffs’ Response
in Opposition (Doc. 191) filed on August 15, 2014. For the reasons stated herein, the
request for reconsideration is denied and the request for leave to file a surreply is
granted.
Wells Fargo requests that the Court reconsider its August 11, 2014 Order
granting Plaintiffs leave to file a reply to Wells Fargo’s Response to Plaintiffs’ Motion

to Compel Production of Documents Found in Privilege Log or grant Wells Fargo
leave to file a surreply. Doc. 188. Wells Fargo argues that the Court did not allow
for three-day mailing time pursuant to Federal Rule of Civil Procedure 6(d) and
granted the request for leave to reply before Wells Fargo had the opportunity to
respond. Wells Fargo states that it would have argued in opposition to the motion
for reply that the reply improperly raises new arguments which were known to
Plaintiffs at the time of filing the Motion to Compel.
Reconsideration of a court’s previous order is an extraordinary remedy and,
thus, is a power which should be used sparingly. Carter v. Premier Rest. Mgmt.,
2006 WL 2620302 (M.D. Fla. Sept. 13, 2006) (citing American Ass’n of People with

Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D. Fla. 2003)). The courts have
“delineated three major grounds justifying reconsideration: (1) an intervening change
in the controlling law; (2) the availability of new evidence; (3) the need to correct clear
error or prevent manifest injustice.” Susman v. Salem, Saxon & Meilson, P.A., 153
F.R.D. 689, 904 (M.D. Fla. 1994). “A motion for reconsideration should raise new
issues, not merely readdress issues litigated previously.”

Paine Webber Income

Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F. Supp. 1514, 1521 (M.D. Fla. 1995).
The motion must set forth facts or law of a strongly convincing nature to demonstrate
to the court the reason to reverse its prior decision. Carter, 2006 WL 2620302, at *1
(citing Taylor Woodrow Constr. Corp. v. Sarasota/Manatee Auth., 814 F. Supp. 1072,
1072-73 (M.D. Fla. 1993)).

“The burden is upon the movant to establish the

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extraordinary circumstances supporting reconsideration.” Mannings v. Sch. Bd. of

Hillsboro Cnty., Fla., 149 F.R.D. 235, 235 (M.D. Fla. 1993).
Although the Court agrees that the Motion for Leave was granted on the day
Defendants’ response was due, the Court found that a reply brief would assist it in
deciding the issues raised in the Motion to Compel. Doc. 188. Thus, the Court finds
that reconsideration is not warranted in this case as Defendant has not established
the need to correct clear error or prevent manifest injustice. The Court will grant
Defendant’s request for leave to file a surreply to address arguments raised by
Plaintiffs in their reply.
ACCORDINGLY, it is hereby
ORDERED:
1.

Wells Fargo N.A.’s Motion for Reconsideration and Motion for Leave to

File Sur-Reply to Plaintiffs’ Reply to Wells Fargo’s Response to Plaintiffs’ Motion to
Compel (Doc. 190) is GRANTED in part and DENIED in part.
2.

Wells Fargo’s request for leave to file a surreply is GRANTED. On or

before August 22, 2014, Defendant shall file a surreply not to exceed seven pages.
3.

Wells Fargo’s request for reconsideration is DENIED.

DONE and ORDERED in Fort Myers, Florida on this 19th day of August, 2014.

Copies:
Counsel of record

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