Rodriguez v. Hibachi Express et al

Filing 149

ORDER denying 147 Motion for Reconsideration. Signed by Magistrate Judge Embry J. Kidd on 10/14/2020. (Kidd, Embry)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

SAUL RODRIGUEZ, MARCOS
ANTONIO RAMOS CARILLO, OSMAR
SANTOS and ALFREDO RAMOS
CARRILLO,
Plaintiffs,
v.

Case No: 6:18-cv-1911-Orl-EJK

JING S XIE, FENG ZHEN HUANG and
NEW HIBACHI EXPRESS, INC.,
Defendants.
/
ORDER
Before the Court is Plaintiff’s Motion for Reconsideration (the “Motion”), filed on October
9, 2020. (Doc. 147.) In the Motion, Plaintiff requests that the Court reconsider its Order (Doc. 145)
denying Plaintiff’s Third Motion to Compel (Doc. 140). Defendants responded in opposition on
October 13, 2020. (Doc. 148.)
A Court may reconsider a previous order if there is a change in controlling law, new
evidence becomes available, or there is a need to correct clear error or to prevent manifest injustice.
See Williams v. United States, No. 8:11-cv-158-T-24-TBM, 2011 WL 839371, at *1 (M.D. Fla.
Mar. 7, 2011) (citing Sussman v. Salem, Saxon, & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla.
1994)). A court “will not reconsider a previous ruling when the party’s motion fails to raise new
issues, and, instead, only relitigates what has already been found lacking.” Lamar Advert. of
Mobile, Inc. v. City of Lakeland, Fla., 189 F.R.D. 480, 488 (M.D. Fla. 1999). “Moreover, while
the trial court is vested with substantial discretion in granting such relief, reconsideration is an
extraordinary remedy, which is to be used sparingly.” Kidwell v. Charlotte Cty. Sch. Bd., No. 2:07-

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cv-13-FtM-34SPC, 2007 WL 9718741, at *3 (M.D. Fla. Nov. 30, 2007). “Thus, a party who fails
to present its strongest case in the first instance generally has no right to raise new theories or
arguments in a motion for reconsideration.” Dalton v. FMA Enter., Inc., No. 95-396-CIV-FTM17D, 1996 WL 684441, at *2 (M.D. Fla. Nov. 25, 1996).
Plaintiff makes two arguments in support of its Motion: First, the Court failed to consider
whether Defendants had control over the requested documents, even if Defendants did not possess
the documents. (Doc. 147 at 2–3.) Second, there is no evidence that Defendants performed a
diligent search for the documents. (Id. at 4–5.) As an initial matter, the word “control” appears
only once in the original motion, when Plaintiff was quoting Federal Rule of Civil Procedure
26(a)(1)(A)(ii) (Doc. 140 ¶ 14), and the words “diligent” and “search” appear nowhere. To the
extent that Plaintiff’s argument rested on Defendants’ control of the documents—rather than their
possession of the documents—or whether Defendants’ search for the documents was sufficiently
thorough, Plaintiff “fail[ed] to present its strongest case in the first instance.” Dalton, 1996 WL
684441, at *2. For that reason alone, the Motion is due to be denied.
Nevertheless, Defendant Xie represents that he attempted to obtain the requested
documents from his bank and from his accountants, but neither maintained the documents. (Doc.
148 at 3–4.) Plaintiff implies that Defendants provided an incorrect account number, but the
attached business records declaration from Wells Fargo simply states that the bank was “[u]nable
to locate acct records associated with 7756.” (Doc. 147-1.) The Court will not read into that
statement more than it says.

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In summary, Plaintiff has failed to satisfy the standard for reconsideration. But even on the
merits, Defendants represent that Defendant Xie testified 1 that he did attempt to obtain the
documents from the third parties who would likely maintain them, but those third parties no longer
had copies of the documents. Based on the foregoing, is it ORDERED that the Motion (Doc. 147)
is DENIED.
DONE and ORDERED in Orlando, Florida on October 14, 2020.

Copies furnished to:
Counsel of Record

1

Neither party attached the deposition transcript for Mr. Xie.

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