Bachman et al v. Bachman et al
MEMORANDUM AND ORDER that the Plaintiffs' Motion for Reconsideration, Filing 187 , is denied. Ordered by Judge Brian C. Buescher. (LAC)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES E. BACHMAN, ADELLA A.
BACHMAN, ERIC J. BACHMAN, RACHEL
A. BACHMAN, MATTHEW R. BACHMAN,
and C. ANDREW BACHMAN,
MEMORANDUM AND ORDER
JOHN Q. BACHMAN, and LEAF SUPREME
PRODUCTS, LLC, A Nebraska Limited
This matter is before the Court on Plaintiffs’ Motion for Reconsideration of the Court’s
previous order overruling objections to the Magistrate Judge’s Order. Filing 187. Plaintiffs also
request that this Court certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Filing 187.
For the reasons stated below, the Court denies Plaintiffs’ motion.
This motion follows the numerous previous motions filed by Plaintiffs, including many
this Court found to have no merit. The Court incorporates its previous orders, Filing 10, Filing 23,
Filing 101, and Filing 145, which contain a more detailed recitation of the facts of this case.
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A. Procedural History
On June 25, 2019, Plaintiffs filed a complaint against Leaf Supreme Products, LLC, and
John Q. Bachman. Filing 1. Soon afterwards, Plaintiffs filed several motions for preliminary
injunction, Filing 2, Filing 7, Filing 8, and Filing 9, which were denied by Senior Judge Laurie
Smith Camp. Filing 10. Judge Smith Camp noted that Plaintiffs did not address any of the required
factors to support a motion for preliminary injunction and had “demonstrated no legal basis for an
injunction.” Filing 10. Undeterred, Plaintiffs filed another motion for preliminary injunction,
Filing 14, and an Amended Motion for Temporary Restraining Order, Filing 16, their fifth and
sixth attempts to obtain preliminary injunctive relief. Judge Smith Camp again denied Plaintiffs’
motions. Filing 23.
Immediately after filing their amended complaint, Filing 26, and before initiating any
discovery, Plaintiffs moved for summary judgment. Filing 27. Judge Smith Camp denied
Plaintiffs’ motion for summary judgment without prejudice as premature. Filing 55. In her order,
Judge Smith Camp admonished,
Plaintiffs also failed to comply with this Court’s local rules. Specifically, Plaintiffs
failed to submit a statement of individually numbered facts which they contest are
material and undisputed. See NECivR 56.1(b)(1). Further, Plaintiffs’ Motion failed
to include pinpoint citations to evidence that supported their factual assertions.
These deficiencies alone could be grounds for denial of summary judgment. The
Court encourages the parties to familiarize themselves with the Court’s local rules
and the Federal Rules of Civil Procedure before this case progresses through
discovery and future motion practice.
After limited discovery on a separate jurisdictional issue, Plaintiffs filed a motion for
partial summary judgment and a motion to dismiss Defendants’ affirmative defenses. Filing 82;
Filing 84. Yet again, Judge Smith Camp denied Plaintiffs’ motions without prejudice as premature
because no discovery had taken place on the issues supporting either of Plaintiffs’ motions. Judge
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Smith Camp took the time to politely explain to Plaintiffs why further discovery was necessary
before she could address Plaintiffs’ motions. Filing 101 at 11-14. Plaintiffs’ inability to obtain
summary judgment was partially their own fault, as Judge Smith Camp noted, “Despite the parties’
extensive motion practice—and perhaps because of it—this case is at an early stage procedurally.”
Filing 101 at 13.
After the unexpected passing of Judge Smith Camp, this case was reassigned to the
undersigned judge. Filing 107. Plaintiffs continued to make numerous objections and motions as
this case progressed. See, e.g., Filing 112 (objection to motion to amend), Filing 114 (objection to
motion for protective order), Filing 118 (motion to strike motion to compel), Filing 123 (objections
to Magistrate Judge’s Order), Filing 125 (motion for reconsideration regarding order on motion
for summary judgment), Filing 130 (motion for reconsideration regarding order on motion for
reconsideration). Observing the effect Plaintiffs’ relentless motion practice has had on this case,
the Magistrate Judge wrote in her order denying one of Plaintiffs’ motions, “In what should be a
relatively straightforward FLSA case, Plaintiffs’ federal motion practice has created a Gordian
Knot, necessitating a diagramed schematic of Plaintiffs’ recurring and duplicative motion practice
to figure out what they are currently requesting.” Filing 131 at 2-3.
After the Magistrate Judge made a straightforward ruling giving Defendants’ leave to
amend their answer, Filing 122 at 14, Plaintiffs filed yet another motion objecting to the order.
Filing 123. In its January 7, 2021 order, the Court overruled Plaintiffs’ objections. Filing 145. The
Court observed that discovery was needed before it could determine if the amendment would be
futile. Filing 145 at 5-6.
The above motions are just some examples of the extensive (and mostly unnecessary)
litigation in this case.
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B. Facts Relevant to Current Motion
Defendant Leaf Supreme Products, LLC (“Leaf Supreme”) is a Nebraska limited liability
company. Filing 26 at 1. It manufactures guards that keep debris out of rain gutters. Filing 26 at 2.
Defendant John Q. Bachman is a member and majority owner of Leaf Supreme. Filing 26 at 1.
Plaintiffs have been Leaf Supreme’s only employees. Filing 26 at 2-4. Plaintiffs assert that from
October 1, 2016, to the present, they have not been paid any wages. Filing 26 at 8. Plaintiffs allege
that James, Adella, Eric, Andrew, Rachel, and Matthew Bachman were all employees of Leaf
Supreme from its inception until April 4, 2019. Filing 26 at 2-4.
On January 18, 2021, Plaintiffs filed a Motion to Compel, requesting an order compelling
Defendants to respond to Plaintiffs’ Requests for Production Nos. 1, 4, and 5. Filing 151. Plaintiffs
argued Defendants were in violation of the Court’s November 18, 2020 order. Filing 122.
According to Plaintiffs, the Court had compelled Defendants to produce documents in response to
Requests Nos. 1, 4, and 5 in its previous order. Filing 151 at 2. Subsequently, on January 20, 2021,
Plaintiffs filed a Motion to Amend. Filing 154. The Magistrate Judge denied both motions on
March 19, 2021. Filing 167. Plaintiffs filed an Objection to the Magistrate Judge’s Order, stating
the order misstated the record, was erroneous as a matter of law, and that the Court abused its
discretion. Filing 171.
In its June 23, 2021 Memorandum and Order, the Court overruled Plaintiffs’ objections.
Filing 184. The Court found that Plaintiffs did not show cause to amend after the progression order
deadline. Filing 184 at 5. Furthermore, the Court found that the Magistrate Judge’s denial of
Plaintiffs’ motion to compel was not clearly erroneous or contrary to the law because the
documents at issue were not relevant. Filing 184 at 9-10. Unsatisfied, Plaintiffs filed a Motion for
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Reconsideration “regarding Order on Appeal to Magistrate Judge Order” on July 1, 2021. Filing
A. Standard of Review
“Motions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721
(8th Cir. 2010) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)).
A motion for reconsideration is not the appropriate place to “tender new legal theories for the first
time.” Id. (quoting Hagerman, 839 F.2d at 414). Nor is it “a vehicle for simple reargument on the
merits.” Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999).
“Relief is available under [Rule 60(b)(6)] . . . only in ‘extraordinary circumstances.’” Buck
v. Davis, 137 S. Ct. 759, 772, 197 L. Ed. 2d 1 (2017) (quoting Gonzalez v. Crosby, 545 U.S. 524,
535, 125 S. Ct. 2641, 2649, 162 L. Ed. 2d 480 (2005)). More specifically, “[r]elief is available
under Rule 60(b)(6) only where exceptional circumstances have denied the moving party a full
and fair opportunity to litigate his claim and have prevented the moving party from receiving
adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005) (citing Atkinson v.
Prudential Prop. Co., 43 F.3d 367, 373 (8th Cir. 1994)).
B. Motion for Reconsideration
Plaintiffs ask this Court to reconsider its order overruling Plaintiffs’ objections to the
Magistrate Judge’s denial of Plaintiffs’ motion to compel Requests for Production Nos. 1, 3, and
5. Filing 151. In general, the Requests for Production ask for Federal income tax returns from
2016-2018, personal financial statements filed by Defendants with any lending institution from
2016-2019, and any document filed in conjunction with any personal financial statement from
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2016-2019. Filing 151. Defendants objected on the basis that these past financial documents were
irrelevant to this case. Filing 156. The Court agreed. Filing 167 at 11-20; Filing 184 at 5-10.
Plaintiffs further ask the Court to reconsider Plaintiffs’ overruled objections to the
Magistrate Judge’s denial of their motion to amend. Filing 184 at 3-5. The Court found that the
Plaintiffs had failed to show good cause to allow them to amend their complaint long after the
deadline to do so had passed. Filing 184 at 3-4. It further found that fairness required it to uphold
progression deadlines and not render scheduling orders meaningless. Filing at 184 at 5. Plaintiffs
make no new arguments supporting the Court revisiting this ruling.
In their brief motion for reconsideration, Plaintiffs make the same arguments they made
previously that were rejected by this Court. Filing 172 at 20-28; Filing 188 at 1-4. Plaintiffs make
no showing that “exceptional circumstances” exist or that they were denied a fair chance to litigate
this case. Plaintiffs’ motion for reconsideration therefore has no merit.
Plaintiffs’ counsel also includes a further missive to the Court claiming “it was his duty to
correct the record” by claiming that “Judge Zwart granted the Plaintiffs’ Motion to compel the tax
returns in the docket sheet entry.” Filing 188 at 2. The Court has reviewed this contention and
concludes it is a purposeful misstatement of the record by Plaintiffs’ counsel.
In her November 18, 2020 order, the Magistrate Judge noted that the requests for
production Plaintiffs filed with the Court in their motion to compel did not include Defendants’
responses, including any of Defendants’ objections. Filing 122 at 12-13. This order compelled
Defendants to file a response or objection to Plaintiffs’ requests for production. Filing 122 at 1213. The docket sheet reflects what Judge Zwart did in her written order; namely, that responses
were compelled “[t]o the extent Defendants have failed to respond to Plaintiffs’ Request for
Production of Documents Nos. 1, 4, or 5.” Filing 122 (docket sheet entry).
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Plaintiffs’ claim that “Judge Zwart granted the Plaintiffs’ Motion to compel the tax
returns.” This claim is a false representation as to any reasonable and fair reading of the entirety
of this dispute. Judge Zwart required responses—if they were not already provided—not the tax
returns. Filing 122 at 12-13. This is exactly what Judge Zwart said in her order. Filing 167 at 1112 (“Plaintiffs’ argument is not supported by the clear language and reasoning of the court’s
previous order. . . . [T]he Court did not compel Defendants to produce documents.”). Judge Zwart’s
previous order required Defendants to respond and object to Request Nos. 1, 4, or 5 if they had not
done so already. Filing 122 at 12-13.
Further, once Judge Zwart received Defendants’ objections, she then granted Defendants’
objections in a March 19, 2021 order, meaning Defendants did not have to provide the tax returns.
Filing 167 at 11-20. In its June 23, 2021 order overruling Plaintiffs’ objections to the Magistrate
Judge’s order, the Court ruled that it was “plainly evident” that the Magistrate Judge had never
granted Plaintiffs’ motion to compel the tax returns. Filing 184 at 6-7.
As has been a constant theme throughout this litigation, Plaintiffs’ motion to reconsider
has no merit. Indeed, given the previous litigation conduct of Plaintiffs in this case, this Court
concludes the instant motion to reconsider is frivolous. Relitigating the merits of a past objection
that the Court already overruled, without any showing that there has been a manifest error of law
or fact, is a waste of judicial resources. See Broadway, 193 F.3d at 990. Plaintiffs woefully fail to
make any reasonable arguments as to why the Court should reconsider its prior ruling. Plaintiffs’
motion for reconsideration is denied.
C. Request to Certify an Interlocutory Appeal
Plaintiffs ask the Court to certify this simple discovery issue for an interlocutory appeal
pursuant to 28 U.S.C. § 1292. The Court declines.
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28 U.S.C. § 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such action may thereupon,
in its discretion, permit an appeal to be taken from such order, if application is made
to it within ten days after the entry of the order.
28 U.S.C. § 1292(b). Section 1292(b) should be used only in “exceptional cases where a decision
on appeal may avoid protracted and expensive litigation.” White v. Nix, 43 F.3d 374, 376 (8th Cir.
Plaintiffs argue that this Court should certify an interlocutory appeal because “the issue
before this Court is a case of first impression for the Federal courts.” Filing 188 at 4. It is not.
Moreover, Plaintiffs have not shown that this issue involves a controlling question of law, that
there are substantial grounds for difference of opinion, or that a decision on appeal may avoid
protracted litigation. In fact, allowing Plaintiffs to appeal a routine discovery issue would
unnecessarily stretch this already prolonged litigation further, after Plaintiffs have already
prolonged this litigation through meritless motions. This matter is unexceptional and does not
warrant an interlocutory appeal that would further drag out these proceedings.
D. Notice Regarding Potential for Sanctions
In reviewing the record of Plaintiffs’ counsel in this matter, the Court is astonished as to
the number of baseless motions filed by Plaintiffs, several of which violated this Court’s rules or
are unsupported by established law. Plaintiffs have repeatedly filed repetitive motions involving
the same issues already decided by this Court. The Court therefore advises that if Plaintiffs through
their counsel continue to file frivolous motions, the Court will impose sanctions pursuant to 28
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U.S.C. § 1927 and Federal Rule of Civil Procedure 11(b)-(c).1 Any sanctions imposed will include
monetary sanctions. The Court advises that all named Plaintiffs may be personally responsible to
pay into the Court any such monetary awards. Counsel for Plaintiffs is ordered to give a copy of
this order to each person counsel represents in this matter so that the named Plaintiffs understand
the potential consequences to themselves if Plaintiffs’ counsel continues this dilatory conduct on
Plaintiffs have failed to show that the Court has committed a manifest error of law or fact.
IT IS ORDERED:
Plaintiffs’ Motion for Reconsideration, Filing 187, is denied.
Dated this 9th day of September, 2021.
BY THE COURT:
Brian C. Buescher
United States District Judge
See Vallejo v. Amgen, Inc., 903 F.3d 733, 749-50 (8th Cir. 2018) (affirming district court’s imposition of sanctions
under 28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11 for relitigating already-decided discovery issues).
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