Bridges et al v. Freese et al
Filing
211
ORDER denying Defendants' 145 "Emergency Motion for Stay and Limited Reconsideration of Order" and denying Defendants' 150 Motion for Hearing. Signed by Magistrate Judge John C. Gargiulo on 10/29/2014 (HM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MARY BRIDGES,
BOBBY GORDON, and
JOHNNIE GRIFFIN, all
individually and on behalf of 345
other named plaintiffs
vs.
PLAINTIFFS
CIVIL ACTION NO.: 3:13-cv-457-TSL-JCG
RICHARD A. FREESE;
TIM K. GOSS;
SHEILA M. BOSSIER;
DENNIS C. SWEET, III;
FREESE AND GOSS PLLC;
SWEET AND FREESE PLLC;
BOSSIER AND ASSOCIATES PLLC; and
DENNIS C. SWEET, d/b/a Sweet and Associates, PLLC
DON A. MITCHELL
DEFENDANTS
THIRD-PARTY DEFENDANT
ORDER DENYING DEFENDANTS’ [145] “EMERGENCY MOTION FOR
STAY AND LIMITED RECONSIDERATION OF ORDER” AND DENYING
DEFENDANTS [150] MOTION FOR HEARING
BEFORE THE COURT is the “Emergency Motion [145] for Stay and Limited
Reconsideration of Order” and a Motion [150] for Hearing, filed by Defendants
Richard A. Freese; Tim K. Goss; Sheila M. Bossier; Dennis C. Sweet, III; Freese and
Goss, PLLC; Sweet and Freese, PLLC; Bossier and Associates, PLLC; and Dennis C.
Sweet d/b/a Sweet and Associates, PLLC (“Defendants”). Plaintiffs have filed a
Response [176], and Defendants have not filed a Reply. Having considered the
submissions of the parties, the record, and relevant legal authorities, the Court
finds that Defendants’ Motions [145, 150] should be denied.
I. DISCUSSION
A.
Standard of Review
While a motion for reconsideration is not explicitly recognized by the Federal
Rules of Civil Procedure, the Court has inherent power to “reconsider, rescind, or
modify an interlocutory order for cause seen by it to be sufficient.” Melancon v.
Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981). The Court’s considerable discretion
to grant the extraordinary remedy of reconsideration must be exercised sparingly in
order to forestall the perpetual reexamination of orders and the resulting burdens
and delays. Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1415 (5th
Cir. 1993); Melancon, 659 F.2d at 553. “Motions to reconsider are not appropriate
to raise arguments that could have or should have been made previously or to reurge matters that a court has already considered.” Pro-Logistics Forwarding Pty.
Ltd. v. Robison Tire Co., No. 2:13cv83-KS-MTP, 2014 WL 1330960, *1 (S.D. Miss.
Apr. 2, 2014).
B.
Analysis
Defendants’ Motion [145] for Reconsideration should be denied because
Defendants are reurging arguments that have previously been rejected and
belatedly offering new arguments and facts that could have been presented in their
original Motions or at the Motions hearing. As noted in the Court’s Order,
Defendants failed to offer particularized and legally supported objections to the
discovery sought by Plaintiffs. Order [137] 5. Defendants instead took an acrossthe-board position that Plaintiffs were entitled to no discovery during the classcertification discovery period because, as asserted by Defendants, the discovery
sought was all merits-based discovery. Simultaneously, Defendants averred that
they had not produced discovery for two reasons: (1) because Plaintiffs’ counsel
would not agree to a protective order identical to one issued in another factuallyrelated case; and (2) because Plaintiffs’ counsel had already been provided some of
the discovery he sought through other litigation.
1.
Relevancy
Defendants are reurging objections to the relevancy of the discovery ordered.
In their original briefing and at the Motions hearing, Plaintiffs concisely addressed
how the discovery sought was needed to establish commonality or typicality. In
response, Defendants repeatedly relied on an unadorned objection that the
discovery sought was improper because it sought merits-based discovery.
Defendants ipse dixit conclusion that none of the discovery sought was relevant to
class certification was offered with little explanation, supporting facts, or
supporting law.
Before certifying a class, the Court must understand the relevant claims,
defenses, facts, and substantive law presented. Funeral Consumers Alliance, Inc.,
v. Serv. Corp. Intern., 695 F.3d 330, 345 (5th Cir. 2012). “The unique facts of each
case will generally be the determining factor governing certification.” Robinson v.
Texas Auto. Dealers Ass’n, 387 F.3d 416, 420 (5th Cir. 2004). There is not always a
bright-line distinction between merits discovery and class-related discovery as to
two “frequently entail overlap.” Comcast v. Behrend, 133 S. Ct. 1426, 1432 (2013).
“When there are disputed facts relevant to Rule 23 requirements, overlap with
merits should not be talismanically invoked to artificially limit a trial court’s
examination of the factors necessary to a reasoned determination of whether a
plaintiff has met her burden of establishing each of the Rule 23 class action
requirements.” Funeral Consumers Alliance, Inc., 695 F.3d at 346.
Here, Defendants “talismanically invoked” an objection that all discovery
sought by Plaintiffs was merits-based. Defendants did not rebut Plaintiffs’
particularized reasons for requesting the discovery or counter the legal authority
Plaintiffs’ offered in support. Defendants’ across-the-board position that all soughtafter discovery was merits-based, and thus irrelevant, was not persuasive. The
Court ruled based on the arguments, facts, and law presented. Defendants did not
carry their burden of demonstrating that the discovery sought should be quashed,
and they advance no valid grounds for reconsideration.
2.
New Arguments, New Information
Defendants seek reconsideration based upon belated arguments and facts
that were not originally presented. Defendants offer no excuse or explanation for
their belatedness.
a.
Financial Institution Subpeonas Defendants now argue that
the financial institution subpoenas are overbroad in scope. Mot. [146] 12.
Defendants’ original Motion [63] on this issue appeared boilerplate and perfunctory.
Moreover, Defendants offered no suggestion as to how the financial institution
subpoenas could be limited in scope and instead stood on their position that
Plaintiffs were entitled to no discovery during the class-certification discovery
period. Plaintiff filed a Response to Defendants’ Motion [63] to Quash providing
facts and detailing how the financial records “would assist [Plaintiffs] in
determining if each purported class member would have common questions of law
and fact and whether the claim of each claimant with regard to his or her particular
settlement would have claims typical of the class.” Resp. [91] 2-3. Defendants filed
no Reply, and thus presented no rebuttal to Plaintiffs’ position.
During the Motions hearing, Defendants were given yet another opportunity
to demonstrate that the bank subpoenas should be quashed or modified. The Court,
not Defendants, raised the issue of whether the subpoenas should be limited in
time. Plaintiffs offered a reasonable response as to why recent financial documents
were relevant, to which Defendants replied with their standard objection that the
discovery sought should not be allowed because it was merits-based.
Only now, in their Motion for Reconsideration, do Defendants provide
representations about what information is contained in the bank accounts that are
the subject of the subpoenas. The information and argument Defendants have now
provided could have been offered initially and are not grounds for reconsideration.
b.
Depositions In their original Motion [67], Defendants sought
to quash numerous depositions noticed by Plaintiffs. Defendants now urge the
Court to limit the scope of documents that the deponents are compelled to provide
pursuant to their deposition subpoenas. Mot. [146] 15. The same documents were
requested in the original deposition subpoenas that were the subject of Defendants’
original Motion [67] to Quash. However, in their original Motion, Defendants did
not address the documents requested by the deposition subpoenas and sought only
to quash the depositions in full, offering no alternative positions. Defendants did
not argue that the scope of documents requested by the subpoenas were overbroad.
New argument is not grounds for reconsideration.
c.
Chart of Information The Court ordered Defendants to
produce a chart detailing information about the PCB claimants’ settlements.
Defendants now maintain that providing the chart of information is “burdensome
and time-consuming . . . [and] not appropriate . . . .” Mot. [145] 3. Despite the
difficulty of compiling the information for the chart being addressed and open for
discussion at the Motions hearing, Defendants did not originally make this
argument. Defendants did not object to providing information about the PCB
claimants’ settlements on grounds that it was burdensome. Defendants objected on
grounds of confidentiality, attorney-client privilege, and medical privilege, and the
Court duly took this into consideration in its ruling.
The Court ordered the chart to remedy Defendants’ confidentiality and
privilege concerns. The Mississippi Supreme Court ordered similar relief to remedy
similar concerns in Williamson v. Edmonds, 880 So. 2d 310 (Miss. 2004). The chart
was also ordered in an effort to remedy Defendants’ obstinate refusal to engage in
discovery. At the time of the Motions hearing, this case had been pending for over a
year, yet Defendants had not produced a single discovery document or allowed one
deposition to go forward. Ultimately, Defendants object to providing the chart, and
they also object to producing the documents from which the information in the chart
could be compiled. Defendants’ new allegation that producing the chart is
burdensome is not grounds for reconsideration.
3.
Other Litigation
The Court rejects any argument that discovery be limited in this case because
it is duplicative of discovery had in other cases. Counsel, and not the Court, knows
what discovery has been produced in other litigation. The Court will not assume
the burden of refereeing an issue that could easily be resolved without Court
intervention if counsel were inclined to cooperate.
II. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants’
Emergency Motion [145] for Stay and Limited Reconsideration of Order is
DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendants’ Motion
[150] for Hearing on Emergency Motion for Stay and Limited Reconsideration of
Order is DENIED.
SO ORDERED AND ADJUDGED, this the 29th day of October, 2014.
s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
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