GE Capital Information Technology Solutions Inc v. Campbell Ads LLC et al
Filing
76
OPINION AND ORDER: Court GRANTS IN PART AND DENIES IN PART 75 Motion to Vacate. The motion is DENIED with respect to the Campbells' request to vacate the order for sanctions and GRANTED with respect to the request for extension of time to respond to the third-party defendants' motion to dismiss. The Campbells are DIRECTED to file their response or motion to withdraw within 14 days of this Order. Signed by Magistrate Judge Andrew P Rodovich on 10/25/2012. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
G.E. CAPITAL INFORMATION
TECHNOLOGY SOLUTIONS, INC.,
)
)
)
Plaintiff
)
)
v.
)
)
CAMPBELL ADS LLC and
)
DEBRA L. CAMPBELL,
)
)
Defendants
)
*******************************)
CAMPBELL ADS LLC and
)
DEBRA L. CAMPBELL,
)
)
Third Party Plaintiffs
)
)
v.
)
)
IKON OFFICE SOLUTIONS, INC.,
)
)
Third Party Defendant
)
Case No. 2:11 cv 82
OPINION AND ORDER
This matter is before the court on the Motion to Vacate [DE
75] filed by the defendants/third party plaintiffs, Campbell Ads
LLC and Debra L. Campbell, on August 20, 2012.
For the reasons
set forth below, the motion is DENIED IN PART and GRANTED IN
PART.
Background
On October 13, 2011, the plaintiff, G.E. Capital Information
Technology Solutions, Inc., served the defendants/third party
plaintiffs, Campbell Ads LLC and Debra Campbell (hereafter
Campbells), with its first interrogatories and requests for
production.
The Campbells did not serve a timely response, and
G.E. Capital filed a motion to compel.
At the December 2, 2011
status conference, the court directed the Campbells to respond to
the outstanding discovery by December 18, 2011.
G.E. Capital did
not receive a response to the outstanding discovery by this date
and filed a motion for sanctions due to the Campbells' failure to
comply with the court order.
At the February 10, 2012 status
conference, the court again instructed the Campbells to respond
to the outstanding discovery by February 17, 2012.
The Campbells
sent responses to the outstanding discovery on February 17, 2012.
The Campbells never responded to the motion for sanctions or
noticed the court of compliance.
On May 2, 2012, the court
granted the motion for sanctions.
The Campbells filed a motion
to reconsider the court’s order on the motion for sanctions,
which was denied on July 25, 2012.
In the Opinion and Order, the
court explained that Federal Rule of Civil Procedure 37(b)(2)(C)
mandates the award of attorney fees when a party’s failure to
comply with discovery was not substantially justified.
Because
the Campbells ignored the first two deadlines, prompting G.E.
Capital to file the motion to compel, and never filed a response
explaining its reason for failing to comply with either of the
deadlines, the court determined that G.E. Capital should not bear
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the cost regardless of whether the Campbells eventually complied.
The Campbells now ask the court to reconsider the motion for
sanctions for a second time.
This time the Campbells argue that
the records G.E. Capital sought were not readily available and
that production was delayed because one of its attorneys was
hospitalized.
Discussion
Although they are frequently filed, the Court of Appeals has
described a motion for reconsideration as "a motion that, strictly speaking, does not exist under the Federal Rules of Civil
Procedure."
Hope v. United States, 43 F.3d 1140, 1142 n.2 (7th
Cir. 1994).
See also Talano v. Northwestern Medical Faculty
Foundation, Inc., 273 F.3d 757, 760 n.1 (7th Cir. 2001).
This
type of motion "is a request that the [Court] reexamine its
decision in light of additional legal arguments, a change of law,
or perhaps an argument or aspect of the case which was overlooked."
Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004)
(internal quotation omitted).
See also United States v. Ligas,
549 F.3d 497, 501 (7th Cir. 2008)("A district court may reconsider a prior decision when there has been a significant change
in the law or facts since the parties presented the issue to the
court, when the court misunderstands a party’s arguments, or when
the court overreaches by deciding an issue not properly before
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it.").
In Frietsch v. Refco, Inc., 56 F.3d 825 (7th Cir. 1995),
the Court of Appeals did not question the availability of a
motion to reconsider but stated:
It is not the purpose of allowing motions for
reconsideration to enable a party to complete
presenting his case after the court has ruled
against him. Were such a procedure to be
countenanced, some lawsuits really might
never end, rather than just seeming endless.
56 F.3d at 828.
See also Oto v. Metropolitan Life Insurance Company, 224 F.3d
601, 606 (7th Cir. 2000)("A party may not use a motion for reconsideration to introduce new evidence that could have been presented earlier."); Divane v. Krull Electric Company, 194 F.3d
845, 850 (7th Cir. 1999); LB Credit Corporation v. Resolution
Trust Corporation, 49 F.3d 1263, 1267 (7th Cir. 1995).
Ulti-
mately, a motion for reconsideration is an "extraordinary remedy
to be employed sparingly in the interests of finality and conservation of scarce judicial resources."
Global View Ltd. Venture
Capital v. Great Central Basin Exploration, 288 F.Supp.2d 482,
483 (S.D.N.Y. 2003)(internal quotation omitted).
A motion to reconsider is not a vehicle to allow the losing
party to use new arguments that it failed to raise in its initial
motion or response.
Oto, 224 F.3d at 606.
The party must point
to something the court overlooked, and here the Campbells are
unable to do so because they never filed a response to the motion
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for sanctions.
Ahmed, 388 F.3d at 249.
The Campbells not only
failed to raise the unavailability of the documents requested and
the poor health of their attorney in response to the motion for
sanctions, they also failed to raise these arguments in their
first motion to reconsider.
Regardless, the Campbells had two
attorneys, one of which had no excuse other than his failure to
respond was "inadvertent and did not prejudice the plaintiff."
(Cifelli Aff. 1)
The Campbells are not entitled to file a series
of motions to reconsider hoping that the court accepts one
theory.
The Campbells again have failed to point out any errors
or facts the court overlooked at the time it issued its decision
that would warrant reconsideration.
In their motion, the Campbells also requested an extension
of time to respond to the third-party defendants’ motion to
dismiss or to file a motion to withdraw.
for an extension of time is GRANTED.
The Campbells’ request
The Campbells are DIRECTED
to file their response or motion to withdraw within 14 days of
this Order.
_______________
Based on the foregoing, the Motion to Vacate [DE 75] filed
by the defendants/third party plaintiffs, Campbell Ads LLC and
Debra L. Campbell, on August 20, 2012, is DENIED with respect the
Campbells’ request to vacate the order for sanctions and GRANTED
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with respect to the request for extension of time to respond to
the third-party defendants’ motion to dismiss.
ENTERED this 25th day of October, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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