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

Filing 403

ORDER denying 394 Plaintiffs' Motion for Reconsideration. Signed by Magistrate Judge Carol Mirando on 5/19/2015. (ANW)

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 Plaintiffs’ Motion for Reconsideration (Doc. 394), filed on
March 5, 2015. Plaintiffs request that the Court reconsider its Order (Doc. 393)
denying Plaintiffs’ Motion for Sanctions Under Federal Rule of Civil Procedure 30.
Doc. 394.

Barbara A. Fein, attorney for non-party Linda LaVay, responded to

Plaintiff’s Motion for Reconsideration on March 11, 2015. Doc. 398.
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)).
A motion for reconsideration does not provide an opportunity to simply reargue
– or argue for the first time – an issue the Court has already determined. Carter,
2006 WL 2620302, at * 1. The Court’s opinions “are not intended as mere first drafts,
subject to revision and reconsideration at a litigant’s pleasure.” Id. (citing Quaker

Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)).
“The burden is upon the movant to establish the extraordinary circumstances
supporting reconsideration.”

Mannings v. Sch. Bd. of Hillsboro Cnty., Fla., 149

F.R.D. 235, 235 (M.D. Fla. 1993).

“Unless the movant’s arguments fall into the

limited categories outlined above, a motion to reconsider must be denied.” Carter,
2006 WL 2620302, at *1.
The Court reviewed Plaintiffs’ motion and the grounds upon which they assert
that Barbara Fein be sanctioned for her conduct during a deposition of Linda LaVay

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that occurred on December 5, 2014. Doc. 394. The Court still finds that sanctions
are not warranted in this case. Plaintiffs have not set forth any new facts or law to
convince the Court to reverse its prior decision.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiffs’ Motion for Reconsideration (Doc. 394) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 19th day of May, 2015.

Copies:
Counsel of record

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