RMD, LLC v. Nitto Americas, Inc. et al

Filing 406

MEMORANDUM AND ORDER memorializing ruling re: 382 Order denying Defendants' Motion for Reconsideration. Signed by Magistrate Judge David J. Waxse on 11/6/2012. (aam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RMD, L.L.C.,
Plaintiff,
CIVIL ACTION
v.
No. 09-CV-2056-DJW
NITTO AMERICAS, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
Pending before the Court is Defendants’ Motion for Reconsideration (ECF No. 281), which
asks the Court to reconsider its ruling (ECF No. 267) allowing Plaintiff leave to file a second
amended complaint to assert a claim for punitive damages. By docket entry (ECF No. 382), the
Court denied Defendants’ Motion for Reconsideration. This order memorializes the reasons for that
ruling. For the reasons set forth below, the Court denies Defendants’ Motion for Reconsideration.
The District of Kansas has promulgated a local rule, D. Kan. Rule 7.3(b), which addresses
reconsideration of non-dispositive rulings, such as a ruling on a motion to amend. Pursuant to D.
Kan. Rule 7.3(b), motions seeking reconsideration of non-dispositive orders must be based on “(1)
an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to
correct clear error or prevent manifest injustice.” The decision whether to grant or deny a motion
for reconsideration is committed to the court’s sound discretion.1
“A motion to reconsider may be granted to correct manifest errors, or in light of newly
discovered evidence; such a motion is directed not at initial consideration but reconsideration, and

1

Hancock v. Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988).

is appropriate only if the court has obviously misapprehended a party’s position, the facts, or
applicable law, has mistakenly decided issues not presented for determination, or the moving party
produces new evidence which it could not have obtained through the exercise of due diligence.”2
The party moving for reconsideration has the burden to show that there has been a change of law,
that new evidence is available, or that reconsideration is necessary to correct clear error or prevent
manifest injustice.3 Further, it is well settled that a motion to reconsider is not a second chance for
the losing party to ask the court to revisit issues already addressed or to consider new arguments and
supporting facts that could have been presented originally.4 Nor is a motion to reconsider to be used
as “a second chance when a party has failed to present it strongest case in the first instance.”5
Defendants do not cite any intervening change in the law nor do they come forward with any
new evidence that was not available to them at the time this Court denied Plaintiff’s Motion to
Amend. Instead, Defendants proceed under the third prong of D. Kan. Rule 7.3(b), contending that
reconsideration is warranted because “the Court needs to correct the clear error and prevent the
manifest injustice it is causing Defendants.”6 Specifically, Defendants assert that “granting Plaintiff
leave to amend its complaint a second time at such a late stage of the proceedings, on the eve of

2

Doerge v. Crum’s Enters, Inc., No. 05-1019-JTM, 2007 WL 1202450, at *1 (D. Kan. Apr.
23, 2007) (citing Anderson v. United Auto Workers, 738 F. Supp. 441, 442 (D. Kan.1989)).
3

Classic Communc’ns, Inc. v. Rural Tel. Svc., Co., Inc., 180 F.R.D. 397, 399 (D. Kan. 1998).

4

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Sonnino v. Univ. of
Kan. Hosp. Authority, 221 F.R.D. 661, 664 (D. Kan. 2004).
5

Sonnino, 221 F.R.D. at 664 (citing Steinert v. Winn Group, Inc., No. 98-2564-CM, 2003
WL 23484638, at *2 (D. Kan. Sept. 24, 2003 (quoting Prairie Band Potawatomi Nation v. Richards,
No. 99-4071-JAR, 2003 WL 21536881, at *1 (D. Kan. July 2, 2003)).
6

Defs’ Memorandum in Support of Motion for Reconsideration (ECF No. 282) at 1.
2

trial,”7 prejudices Defendants and constitutes manifest injustice. Much of Defendants’ argument
asserting manifest injustice stems from Defendants’ concern that the amendment was permitted “on
the eve of trial” – a concern obviated when the Scheduling Order was amended on July 9, 2012,
continuing the trial an additional four months, until December 10, 2012.8 Additionally, the Court
concurs with Plaintiff’s well-stated argument militating against a finding of manifest injustice:
Defendants’ claim of manifest injustice relies on facts well known to Defendants
throughout this litigation. For example, Defendants argue that “Nitto is merely a
holding company” which was “not even authorized to be a party to the Distribution
Agreement” and should be dismissed from this lawsuit at the summary judgment
sta[g]e. These facts have not changed since the start of the lawsuit, yet Nitto has not
sought dismissal. Further, while Defendants argue that their strategy may have been
different had punitive damages been alleged earlier (and that new counsel may need
to be hired) they never explain why Nitto was prepared to pay potential contract and
tort damages previously, but the potential increase in those damages now presents
manifest injustice. Importantly, Nitto is not being barred from presenting evidence
of their corporate status at trial and they will have the full opportunity to show the
purported lack of evidence implicating them in any fraud. Further, Defendants have
not shown how the possibility of additional damages somehow changes Nitto’s
strategy such that it is contradictory to Permacel’s defense strategy.9
Defendants other arguments – futility and untimeliness – likewise fail to provide a basis to grant
reconsideration. Futility of amendment is an argument that Defendants could have properly raised
in their Response in Opposition to the Motion for Leave. Defendants did not raise the argument at
that time, and a motion for reconsideration is not to be used as a second chance to request a court

7

Defs’ Memorandum in Support of Motion to Reconsider (ECF No. 282) at 4.

8

See Order Memorializing July 9th Rulings (ECF No. 364).

9

Pltf’s Response in Opposition to Defendants’ Motion to Reconsider Order (ECF No. 285)

at 8.
3

to consider new arguments that could have been presented originally.10 Defendants did argue that
Plaintiff’s Motion for Leave was untimely – an argument that the court considered and rejected at
the hearing on the motion. Defendants have presented no new evidence or change in the law at this
time; they simply restate their earlier argument. Defendants have thus failed to present a proper basis
for reconsideration.
In conclusion, Defendants fail to show how the Court’s ruling granting Plaintiff leave to file
a Second Amended Complaint alleging punitive damages was clearly erroneous or has resulted in
manifest injustice. Having carefully reviewed the arguments contained in Defendants’ Motion for
Reconsideration, the Court, in its discretion, finds no basis to reconsider its determination.
IT IS THEREFORE ORDERED that Defendants’ Motion for Reconsideration (ECF No.
281) is denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 6th day of November, 2012.
s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

10

Servants, 204 F.3d at 1012; See also Hammond v. City of Junction City, 168 F. Supp. 2d
1241, 1244 (D. Kan. 2001).
4