Bricklayers Union Local No. 6 of Indiana Pension Fund et al v. Stensrud, et al

Filing 62

OPINION AND ORDER: The Motion to Vacate November 30, 2017 Opinion and Order 37 is DENIED. Signed by Magistrate Judge Andrew P Rodovich on 5/30/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
Fred A. Colvin, Chairman of the
Board of Trustees, on behalf of
BRICKLAYERS UNION LOCAL NO. 6 OF
INDIANA PENSION FUND, et al.,
Plaintiffs,
v.
ALAN D. STENSRUD d/b/a COUTURE
SURFACES, et al.,
Defendants.

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Case No. 2:17-cv-232

OPINION AND ORDER
This matter is before the court on the Motion to Vacate November 30, 2017 Opinion and
Order [DE 37] filed by the defendant, Watson Commercial Group, Inc., d/b/a Couture Surfaces,
on December 19, 2017. For the following reasons, the motion is DENIED.
Background
The plaintiffs initiated this matter on May 24, 2017, pursuant to 29 U.S.C §1132 and
§1145, Employee Retirement Income Security Act of 1974 (ERISA) and Section 301 of the
Labor-Management Relations Act, 1947, as amended, 29 U.S.C. §185 (LMRA) to collect
the delinquent fringe benefit contributions and deductions owed by the defendants to the
plaintiffs. The court scheduled a Rule 16 Preliminary Pretrial Conference for July 28, 2017.
Prior to the Rule 16 conference, the defendants filed the Motion to Dismiss Counts I, II, V, and
VI of the Complaint [DE 15]. The briefing on that motion currently is stayed, and the plaintiffs
voluntarily have dismissed Count V and VI.
Prior to the Rule 16 conference, the parties filed their Federal Rule of Civil Procedure
26(f) report that indicated on July 20, 2017, the parties held a planning meeting under Rule 26(f).

In light of the parties’ discussions at the pretrial conference about the possibility of settlement,
the court did not enter a Rule 16(b) scheduling order or a briefing schedule on the pending
motion to dismiss. On September 1, 2017, the plaintiffs served Watson with the Plaintiffs' First
Set of Interrogatories, Plaintiffs' First Request for Production of Documents, and Plaintiffs' First
Request to Admit Facts and Genuineness of Documents. The plaintiffs indicated that Watson
did not respond to the interrogatories or the request to produce documents. Therefore, after
attempting to get Watson to respond fully to the discovery the plaintiffs filed the Verified FRCP,
Rule 37(a)(3)(B) Motion, With Self-Contained Brief, to Compel Defendant Watson Commercial
Group, Inc., d/b/a Couture Surfaces to Respond to Plaintiffs’ Written Discovery [DE 25] on
November 2, 2017. Watson did not respond to the motion to compel, and the court entered an
Opinion and Order on November 30, 2017 granting the motion.
Watson has requested that the court vacate its November 30, 2017 Opinion and Order
because the plaintiffs’ motion to compel was procedurally improper. The plaintiffs have filed a
response, and Watson has filed a reply.
Discussion
The court will construe Watson’s motion as a motion to reconsider. 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 Talano v. Northwestern Med.
Faculty Found., 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 Seng-Tiong Ho v. Taflove, 648 F.3d

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489, 505 (7th Cir. 2011) (explaining that a court can amend its judgment only if the petitioner
can demonstrate a manifest error of law or present newly discovered evidence) (citing Obriecht
v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008); 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 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 Oto v. Metro. Life Ins. Co., 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 Co., 194 F.3d 845, 850 (7th Cir. 1999); LB Credit Corp. v.
Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). Ultimately, 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).
First, Watson contends that the plaintiffs failed to file a certificate of service as required
under Federal Rule of Civil Procedure 5(d)(3) which provides as follows:

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(3) Electronic Filing, Signing, or Verification. A court may, by local rule,
allow papers to be filed, signed, or verified by electronic means that are
consistent with any technical standards established by the Judicial
Conference of the United States. A local rule may require electronic filing
only if reasonable exceptions are allowed. A paper filed electronically in
compliance with a local rule is a written paper for purposes of these rules.
Pursuant to N.D. Ind. L.R. 5-2,
(a) Electronic Service Permitted. Electronically filed papers may be
served electronically if service is consistent with the CM/ECF User
Manual.
(b) When Electronic Service Is Deemed Completed. A person registered to
use the court’s electronic-filing system is served with an electronically
filed paper when a “Notice of Electronic Filing” is transmitted to that
person through the court’s electronic filing system.
The plaintiffs included a certificate of service on page six of the motion to compel. The
certificate indicated that the plaintiffs had electronically filed the motion with the Clerk of the
Court using the CM/ECF system which sent notification of the filing to Watson’s attorneys. The
Notice of Electronic Filing (NEF) is deemed the certificate of service for purposes of Rule
5(d)(1). The NEF listed Watson’s attorneys of record as recipients of the motion to compel.
Because the plaintiffs’ motion was properly served, Watson had fourteen days after service of
the motion to file a response. N.D. Ind. L.R. 7-1(d)(2)(A). Failure to file a response within the
time prescribed may subject the motion to summary ruling. N.D. Ind. L.R. 7-1(d)(4). Watson
did not file a response. Therefore, the court held because Watson did not respond to the motion
to compel it did not demonstrate that the plaintiffs filed the motion to compel before attempting
to obtain the discovery in good faith, that its position was substantially justified, or that other
circumstances make an expense award unjust, and therefore granted the motion.
Next, Watson has argued that the plaintiffs failed to conduct a conference to resolve the
discovery dispute as required by N.D. Ind. L.R. 37-1 and Federal Rule of Civil Procedure

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37(a)(1). “A party filing any discovery motion must file a separate certification that the party
has conferred in good faith or attempted to confer with other affected parties in an effort to
resolve the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1(a). The court
may deny any motion that failed to include the required certification. N.D. Ind. L.R. 37-1(b).
The plaintiffs complied with Rule 37 by attaching a separate certification. Additionally,
the motion to compel included the efforts that the plaintiffs took to obtain Watson’s responses to
the outstanding discovery. The court has broad discretion in determining whether the moving
party has satisfied the meet-and-confer component of Federal Rule of Civil Procedure 37(a)(1)
and Local Rule 37-1. See Lucas v. GC Servs. L.P., 226 F.R.D. 328, 335 (N.D. Ind.
2004) (finding the plaintiffs' lack of compliance not fatal when the motion reflected an effort to
confer with the defendants).
Lastly, Watson contends that since the court did not enter a scheduling order in this
matter all substantive action, including discovery had been stayed. Federal Rule of Civil
Procedure 26(d)(1) provides that “a party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial
disclosure under Rule 26(a)(1)(B).” In this case, on July 20, 2017 the parties conferred as
required by Rule 26, and submitted a written report of their meeting that specifically stated that
“the parties held a planning meeting under Fed. R. Civ. P. 26(f)”. [DE 18]. The court is not
required to enter scheduling order before discovery requests can be submitted. Durham v. IDA
Group Ben. Trust, 276 F.R.D. 259, 262 (N.D. Ind. 2011). Moreover, Watson has not cited any
case authority and seemingly has abandoned this argument in its reply brief.

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Based on the foregoing reasons, the Motion to Vacate November 30, 2017 Opinion and
Order [DE 37] is DENIED.
ENTERED this 30th day of May, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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