Doe, A.L. v. United States of America et al

Filing 169

MEMORANDUM AND ORDER denying 164 Motion for Reconsideration re 161 Order on Motion to Exclude. Signed by District Judge Daniel D. Crabtree on 1/8/2021. Mailed to pro se party Mark E. Wisner by regular mail. (heo)

Case 2:16-cv-02627-DDC Document 169 Filed 01/08/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AARON LEININGER,
Plaintiff,
v.

Case No. 16-2627-DDC

UNITED STATES OF AMERICA AND
MARK WISNER,
Defendants.

MEMORANDUM AND ORDER
This case is before the court on Plaintiff’s Motion to Reconsider Order Striking
Deposition Testimony of Mark E. Wisner (Doc. 164). In a Memorandum and Order entered
November 2, 2020, the court held that plaintiff’s counsel made improper objections and
comments during the June 29, 2020 deposition of Wisner. As a Rule 30(d)(2) sanction and in the
interests of fairness, the court struck the entire June 29, 2020 deposition from the record. The
court also found as trier of fact that Wisner’s testimony in that deposition was not credible.
D. Kan. Rule 7.3(b) requires a movant to base its motion for reconsideration 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.” A motion to reconsider “is not appropriate to
revisit issues already addressed or advance arguments that could have been raised in prior
briefing.” Ferluga v. Eickhoff, 236 F.R.D. 546, 549 (D. Kan. 2006) (citing Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). So, “a motion for reconsideration is appropriate
[only] where the court has misapprehended the facts, a party’s position, or the controlling law.”
Id. (citing Servants of Paraclete, 204 F.3d at 1012). “The decision whether to grant a motion to
reconsider is committed to the district court’s discretion.” Coffeyville Res. Ref. & Mktg., LLC v.

Case 2:16-cv-02627-DDC Document 169 Filed 01/08/21 Page 2 of 5

Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261, 1264 (D. Kan. 2010) (citing In re Motor Fuel
Temperature Sales Practices Litig., 707 F. Supp. 2d 1145, 1166 (D. Kan. 2010)); see also
Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995) (noting “the decision to
grant reconsideration is committed to the sound discretion of the district court”).
Plaintiff makes two arguments why the court should reconsider its decision to strike
Wisner’s deposition: (1) the result is manifestly unjust because the penalty is too severe; and (2)
plaintiff has rendered the ruling moot by withdrawing his designation of Wisner’s deposition in
this case and two others, and by agreeing not to designate the transcript in other cases. Neither
argument merits reconsideration.
First, plaintiff’s concern about the lasting negative effect of the court’s ruling does not
justify reconsideration. Plaintiff argues that counsel’s objections and comments did not actually
change the outcome of the deposition; he contends that Wisner would not have answered the
government’s questions in any event. Arguing that the government suffered no harm, plaintiff’s
counsel implores the court to consider his sanction-free record in this case and others. He claims
that because of this court’s order, plaintiff’s counsel will have to disclose that he has been
sanctioned by a federal court when he moves to appear pro hac vice or applies for a license in
another state.
Plaintiff’s arguments are a variation on his prior argument that striking the deposition
was not commensurate with the severity of counsel’s infractions. (Doc. 139, at 5.)1 The court
already considered plaintiff’s “severity” argument, and while the current version differs slightly

1

In plaintiff’s response to defendant’s motion to exclude, plaintiff argued:

The statements at issue here do not remotely rise to the level of justifying any type of sanction, let
alone one as severe as striking a party witnesses’ deposition. Plaintiff’s counsel has been
litigating eight (8) separate Wisner-related cases for over four (4) years. Over this extensive
course of litigation, Plaintiff’s counsel has never once been subject to a motion to compel, let
alone a motion for sanctions.

2

Case 2:16-cv-02627-DDC Document 169 Filed 01/08/21 Page 3 of 5

from its predecessor, a motion to reconsider is neither a place to rehash prior arguments nor raise
new ones. Ferluga, 236 F.R.D. at 549 (citation omitted).
To be clear, the court did not levy a Rule 11-type sanction on counsel, or any type of
sanction that requires a finding of bad faith. Instead, the court applied a “sanction” under Rule
30(d)(2)—the word that the rule itself uses—as a discovery penalty. Counsel breached the
discovery rules during a deposition, and the most fitting penalty for his actions under the
circumstances was striking the deposition testimony. If plaintiff had presented the testimony live
at trial and made the same objections and comments, the court likely would have struck the
testimony and comments from the record.
This Rule 30 “sanction” is not the type of sanction that must be disclosed to the District
of Kansas by pro hac vice movants, and the court anticipates other courts will view it similarly.
See Layne Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL-GLR, 2011 WL 6934112, at
*3, *4 (D. Kan. Dec. 30, 2011) (rejecting a similar argument about the potential effect of a Rule
30(d)(2) sanction, but ultimately electing to withdraw the sanctions sua sponte)2; Affidavit in
Support of Motion for Leave to Appear Pro Hac Vice (form),
http://ksd.uscourts.gov/index.php/forms/?open=CivilForms (requiring District of Kansas
applicants to verify that “[n]o disciplinary or grievance proceedings” are pending or have
previously been filed against them, and that they have not been charged in any court with

2

Specifically, Layne noted:

The Court does not view the monetary sanction imposed for a Rule 30(c)(2) infraction as
impacting Mr. Levine’s pro hac vice status in this Court. Although Mr. Levine engaged in
sanctionable conduct under Rule 30(d)(2), his misunderstanding of Rule 30(d)’s requirements
does not call into question his qualifications to practice law in this Court. Nor does he or
Defendant identify any other court where his professional integrity would be affected. A sanction
under Rule 30(d)(2) does not result from any disciplinary proceedings or a charge of
unprofessional conduct. It is a procedural sanction to determine which party or attorney should in
fairness bear the monetary cost of disputed discovery.

3

Case 2:16-cv-02627-DDC Document 169 Filed 01/08/21 Page 4 of 5

“unprofessional conduct”). Counsel’s infraction involved neither disciplinary proceedings nor
charges of unprofessional conduct. Instead, the infraction violated the Federal Rules of Civil
Procedure and the court imposed a remedy for that violation authorized by those rules. The court
referred to the remedy as a “sanction” because the governing rule of procedure uses that word.
To the extent that counsel seeks to appear before another court that requires disclosure of this
court’s order striking the deposition, counsel may also submit this Memorandum and Order to
manifest this court’s intent to impose a tailored discovery penalty—not a sanction involving
disciplinary proceedings or charges of unprofessional conduct.
Simply put, the court’s decision was not manifestly unjust. The District of Kansas has
applied a high standard to claims of manifest injustice, requiring that the injustice be “apparent to
the point of being indisputable.” Layne Christensen Co., 2011 WL 6934112, at *2 (quoting TriState Truck Ins., Ltd. v. First Nat’l Bank of Wamego, No. 09-4158-SAC, 2011 WL 4691933, at
*3 (D. Kan. Oct. 6, 2011)). Counsel may not like the court’s decision and may fear lasting
repercussions (although the court disagrees with counsel’s assessment), but this does not create
an injustice. And certainly it does not create injustice that is apparent to the point of being
indisputable—particularly when a “sanction” under Rule 30(d)(2) is discretionary with the court.
See Nebeker v. Nat’l Auto Plaza, 643 F. App’x 817, 826 (10th Cir. 2016).
And finally, while the court appreciates plaintiff’s effort to avoid further litigation about
Wisner’s deposition, withdrawal of the offer at this stage of the proceeding does not moot the
court’s order. The controversy would have been moot had plaintiff decided to withdraw
designation of Wisner’s deposition before learning about the court’s decision. Now, plaintiff
knows that the court also finds Wisner’s testimony not credible. (Doc. 161, at 6.) Given this
awareness, counsel won’t risk the loss of critical evidence by agreeing not to designate the

4

Case 2:16-cv-02627-DDC Document 169 Filed 01/08/21 Page 5 of 5

deposition in other cases. Plaintiff now has the benefit of knowing that although the court found
Wisner’s deposition not credible, the court still found sufficient evidence of Wisner’s mixed
motives to hold the government responsible for Wisner’s actions. (Doc. 162, at 6–8, 23.) Under
these circumstances, it is unjust for plaintiff to change his position and claim mootness. There
was a justiciable controversy when the court made its decision, and claiming mootness after-thefact, to avoid the consequences of counsel’s actions now that plaintiff knows the ultimate
outcome of the case—which was favorable for him—cannot change that procedural fact.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider Order Striking
Deposition Testimony of Mark E. Wisner (Doc. 164) is denied.
Dated this 8th day of January, 2021, at Kansas City, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

5