Schneider et al v. CitiMortgage, Inc. et al
MEMORANDUM AND ORDER denying 474 Motion for Reconsideration. Signed by U.S. District Senior Judge Sam A. Crow on 6/22/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RANDALL A. SCHNEIDER
and AMY L. SCHNEIDER
MEMORANDUM AND ORDER
This case comes before the court on the plaintiffs’ “Motion to
Reconsider ECF 473.” ECF# 474. In its order (ECF#473), the court denied, in
relevant part, the plaintiffs’ motion for review (ECF# 463) of the Magistrate
Judge’s order (ECF# 455) that had denied the plaintiffs’ motion for contempt
against the defendant Citigroup for its failure to cooperate timely in
providing a date and location for Citigroup’s Rule 30(b)(6) deposition. The
plaintiffs now ask the district court to reconsider its denial based on “new
evidence,” that is, the deposition testimony of Citigroup’s corporate
representative on June 13, 2017, in Dallas, Texas, that he had known for
five or six months that he would be testifying as the corporate
representative. ECF# 474, p. 2.
The court’s local rule, D. Kan. Rule 7.3(b) “governs motions to
reconsider non-dispositive orders.” Fox. v. Pittsburg State University, 2016
WL 4919463, at *1 (D. Kan. Sep. 15, 2016). “A motion to reconsider 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.” D. Kan. Rule 7.3(b). “A party seeking reconsideration
may not revisit issues already addressed or assert new arguments or
supporting facts that otherwise were available for presentation when the
party filed the original motion.” Creamer v. City of Phillipsburg, 2015 WL
10944999 at *1 (D. Kan. Feb. 27, 2015)(citations omitted), aff’d, 609 Fed.
Appx. 541 (10th Cir. Jul. 2, 2015). The asserted “new evidence” should be
material and bear upon the issues addressed in the prior order. See Nutter
v. Wefald, 1995 WL 783216 at *1 (D. Kan. Nov. 22, 1995).
In denying the plaintiffs’ motion for contempt, the magistrate
judge noted that the defendants’ counsel “could have acted in a more
efficient manner in responding to the plaintiffs’ counsel’s requests” but that
“[t]he actions of defendants’ counsel, while somewhat dilatory, certainly do
not warrant sanctions.” ECF# 455, p.3. On review, this court said:
The plaintiffs’ motion fails its burden of showing that the Magistrate
Judge’s order is clearly erroneous or contrary to the law. The plaintiffs’
arguments do not establish how the defendants’ delayed responses
necessarily violated the plain requirements or deadlines imposed by
rule or order. The Magistrate Judge acted well within his reasonable
discretion in handling the plaintiffs’ motion in this manner. As has been
observed, the defendants could have acted more promptly and
completely in their responses on the deposition designations, and they
could have acted more timely in offering the proposed stipulation. Still,
the court agrees with the Magistrate Judge that this conduct by the
defendants is not in itself a discovery violation warranting sanctions.
ECF# 473, pp. 4-5. There is nothing in either order that finds or presumes
any probable or justifiable reasons as mitigating the defendants’ delayed
responses. Neither order makes mention of any problem or difficulty that the
defendants were having in designating a particular corporate representative.
For that matter, the analyses appearing in both orders would not consider
this alleged “new evidence” to be any kind of aggravating circumstance to
the defendants’ delay. Finally, the defendants did not represent in ECF# 449
that they were still considering who would serve as the designated Citigroup
corporate representative. The plaintiffs’ “impression” to the contrary is not
material new evidence that justifies any relief on their motion to reconsider.
IT IS THEREFORE ORDERED that the plaintiffs’ motion to
reconsider ECF# 474 is denied.
Dated this 22nd day of June, 2017 at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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