City of Las Cruces et al v. United States of America et al

Filing 490

ORDER by District Judge Judith C. Herrera granting in part, denying in part and deferring judgment in part on 476 Defendant American Linen Supply of New Mexico, Inc.'s Motion for Court to Reconsider [Its] Timely Filed Reply Brief. (baw)

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CITY OF LAS CRUCES, et al.,
Plaintiffs,
v.

Civ. No. 17-809 JCH/GBW

UNITED STATES OF AMERICA, et al.,
Defendants.

ORDER
GRANTING IN PART, DENYING IN PART, AND DEFERRING JUDGMENT IN PART
ON DEFENDANT AMERICAN LINEN SUPPLY OF NEW MEXICO, INC.’S MOTION
FOR COURT TO RECONSIDER ITS TIMELY FILED REPLY BRIEF
This case is before the Court on Defendant American Linen Supply of New Mexico, Inc.’s
(“American Linen’s”) Motion for Court to Reconsider [Its] Timely Filed Reply Brief. Doc. 476
(“the Motion”). Earlier, the Court granted the Motion in part “as to the stay of the submission of,
and opposition to, affidavits of reasonable attorney fees awarded by the Court in its Memorandum
Opinion and Order Overruling Objections (Doc. 474)” and deferred judgment on the remainder of
the Motion. See Doc. 478 at 1. Having reviewed the remainder of the Motion and Defendant
American Linen Supply of New Mexico, Inc.’s Reply in Support of Objections to November 9,
2021, Order (Doc. 456) and being fully advised in the premises, the Court GRANTS the remainder
of the Motion IN PART as to its request for consideration of American Linen’s reply brief,
DENIES the remainder of the Motion IN PART in so far as it requests reconsideration of the
Court’s decision to overrule American Linen’s objections in its Memorandum Opinion and Order
Overruling Objections, and DEFERS JUDGMENT on the remainder of the Motion IN PART as

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 2 of 7

to its request for reconsideration of the expenses the Court awarded Plaintiffs in its Memorandum
Opinion and Order Overruling Objections.
BACKGROUND
On November 9, 2021, Magistrate Judge Gregory B. Wormuth ruled on several discovery
disputes, including the scope of discovery authorized by the Court on Plaintiffs’ arranger claim;
the propriety of topics that American Linen had noticed for Rule 30(b)(6) depositions of Plaintiffs,
Daniel B. Stephens & Associates, Inc. (“DBSA”), and John Shomaker & Associates, Inc. (“JSAI”);
and the timeliness of the notices for the latter two depositions. See generally Doc. 435 (“Discovery
Order”). He clarified the scope of reopened discovery, issued protective orders for deposition
topics noticed to Plaintiffs on six documents from the administrative record and the Rule 30(b)(6)
depositions of DBSA and JSAI as then-noticed, and awarded Plaintiffs the reasonable expenses
that they had incurred to brief the parties’ cross motions to compel and for protective orders for
DBSA’s and JSAI’s depositions. See id. at 7-12, 88-120.
Two weeks later, American Linen timely objected to the Magistrate Judge’s Discovery
Order, contesting the propriety of the expense award, the scope of reopened discovery, and the
protective order issued for deposition topics noticed to Plaintiffs on documents from the
administrative record. See Doc. 440. Plaintiffs responded on December 7, 2021. See Doc. 448.
Briefing on these objections was complete on December 21, 2021, see Doc. 457, with the filing of
American Linen’s reply, see Doc. 456.
On March 9, 2022, the Court overruled American Linen’s objections without considering
its reply brief. See Doc. 474 at 1, 3, 19. It concluded that the Magistrate Judge’s expense award
was not clearly erroneous or contrary to law because Federal Rules of Civil Procedure 37(a)(5)(A)
and (B), not Federal Rule of Civil Procedure 37(a)(5)(C), applied to that award; reasonable persons
would not dispute that American Linen’s position on the reasonable particularity of the topics
2

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 3 of 7

noticed for DBSA’s and JSAI’s depositions lacked substantial justification; and no exceptional
circumstance rendered the award unjust. See id. at 4-14. The Court also found that the Magistrate
Judge’s conclusion about the undue burden posed to Plaintiffs by the topics noticed by American
Linen on documents from the administrative record was not clearly erroneous and that the
Magistrate Judge’s elucidation of the scope of discovery was not clearly erroneous or contrary to
law. See id. at 14-18. Then, the Court concluded that reasonable expenses incurred in responding
to objections to expenses awarded pursuant to Federal Rule of Civil Procedure 37(a) are expenses
incurred in making the discovery motion underlying that award and awarded Plaintiffs three
quarters of the expenses that they had incurred to respond to American Linen’s objections. See id.
at 19-20.
The following day, American Linen filed the Motion currently under consideration,
informing the Court that it had not considered American Linen’s reply brief and requesting the
Court to “give the consideration it deems appropriate” to this brief, reconsider the expenses
awarded in its Memorandum Opinion and Order Overruling Objections, and stay briefing on that
award for the pendency of the Motion. See Doc. 476. On March 11, 2022, the Court granted the
Motion as to the stay, deferred judgment on the remainder of the Motion, and stayed briefing on
it. See Doc. 478. The Court now resolves the Motion as to its earlier non-consideration of the reply
brief without further briefing or oral argument and lifts the stay on briefing on the remainder of
the Motion so that the parties may fully brief the expense award issue.
LEGAL STANDARD
“[T]he Federal Rules of Civil Procedure do not mention motions to reconsider, let alone
set forth a specific procedure for filing them or a standard for analyzing them.” XTO Energy, Inc.
v. ATD, LLC, 189 F. Supp. 3d 1174, 1187 (D.N.M. 2016). Courts construe motions to reconsider
3

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 4 of 7

in one of three ways: (1) a motion to alter or amend a judgment pursuant to Federal Rule of Civil
Procedure 59(e); (2) a motion for relief from final judgment pursuant to Federal Rule of Civil
Procedure 60(b); or (3) a motion for revision of an interlocutory order as authorized by Federal
Rule of Civil Procedure 54(b). See Price v. Philpot, 420 F.3d 1158, 1167 & n.9 (10th Cir. 2005).
Reconsidering an interlocutory order is discretionary, see Fye v. Okla. Corp. Comm’n, 516 F.3d
1217, 1223 n.2 (10th Cir. 2008), and the Court “select[s] the [applicable] standard of review,”
Kruskal v. Martinez, 429 F. Supp. 3d 1012, 1024 (D.N.M. 2019). A motion for reconsideration is
not an appropriate vehicle to “advance arguments that could have been raised in prior briefing.”
Servants of the Paraclete, 204 F.3d at 1012; see also Tillmon v. Douglas Cnty., 817 F. App’x 586,
590 (10th Cir. 2020) (“[A]rguments raised for the first time in a motion for reconsideration are not
properly before the [district] court and generally need not be addressed.” (quoting United States v.
Trestyn, 646 F.3d 732, 742 (10th Cir. 2011))).
ANALYSIS
I.

CONSIDERATION OF AMERICAN LINEN’S REPLY BRIEF
As an initial matter, the Court has now fully considered American Linen’s reply brief and,

having done so, revisited its ruling on American Linen’s objections. Nonetheless, the Court finds
no reason to revise its decision to overrule American Linen’s objections to the Magistrate Judge’s
Discovery Order. In short, the relevant arguments raised in the overlooked reply brief were
previously considered and rejected, and the reply brief does not persuade the Court to reach a
different conclusion.
In its reply brief American Linen first argues that the Magistrate Judge should have
analyzed his expense award under Federal Rule of Civil Procedure 37(a)(5)(C) since he allowed
American Linen to depose DBSA and JSAI. See Doc. 456 at 7-8 & n.4. The Court considered and
rejected this argument when overruling American Linen’s objections. See Doc. 474 at 5 (finding
4

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 5 of 7

that “[t]his argument overlooks the specific issue raised by [the Motions on which the Magistrate
Judge awarded expenses] and addressed by the Discovery Order: whether American Linen could
depose DBSA and JSAI pursuant to the notices issued on July 9, 2021” and that “Defendant did
not prevail on this issue or these Motions”). The reply brief does not alter the Court’s conclusion
on this point.
The reply then contends that the Magistrate Judge found that American Linen’s positions
on these Motions were not substantially justified for a single, multi-factored reason (the notices
for DBSA’s and JSAI’s depositions were untimely, lacked reasonable particularity, and imposed
an undue burden); that this finding is erroneous if any of the Magistrate Judge’s conclusions about
the lack of justification for American Linen’s timeliness, particularity, and burdensomeness
positions is erroneous; and that each of the Magistrate Judge’s conclusions about the absence of
justification for these positions is erroneous. See Doc. 456 at 9-11. The Court considered and
rejected this contention when overruling American Linen’s objections. See Doc. 474 at 6-11
(concluding that untimeliness, undue burden, and want of reasonable particularity were three
adequate and independent reasons for finding that Defendant’s positions on the Motions lacked
substantial justification and that the Magistrate Judge’s determination about the lack of substantial
justification for Defendant’s position on the reasonable particularity of the topics noticed for
JSAI’s and DBSA’s deposition was not clearly erroneous or contrary to law). The reply brief does
not alter the Court’s conclusion on this point.
Finally, the brief directs the Court to several circumstances that make the Magistrate
Judge’s expense award unjust: (1) the complexity of the parties’ dispute; (2) the Magistrate Judge’s
decision to reopen discovery to allow American Linen to depose JSAI and DBSA makes his denial
of American Linen’s motion to compel these hydrogeologists’ depositions a denial without

5

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 6 of 7

prejudice; and (3) Plaintiffs’ intransigence during the parties’ meet and confer process. See Doc.
456 at 11-12. The Court considered and rejected each of these circumstances when overruling
American Linen’s objections to the expense award. See Doc. 474 at 11-13. The reply brief does
not alter the Court’s conclusion on this point.
II.

RECONSIDERATION OF EXPENSES AWARDED TO RESPOND TO OBJECTIONS
Turning to the request to reconsider the expenses that the Court awarded to Plaintiffs in its

Memorandum Opinion and Order Overruling Objections for their response to American Linen’s
objections, the Court finds that it would benefit from a complete set of briefing on the propriety of
this award and so lifts the stay on that issue. Here, American Linen did not contest, in its reply, the
propriety of the expense award requested by Plaintiffs in their response to its objections. See
generally Doc. 456. Plaintiffs, however, made that request in the final sentence of their response
and dropped a footnote to a string cite for the proposition that the Court may award them the
reasonable expenses incurred in responding to objections to a discovery order. See Doc. 448 at 24
& n.17. It is arguable that the manner in which Plaintiffs requested an expense award provided
inadequate notice to American Linen that an award was at issue. Under this circumstance, the
Court will not find American Linen to have waived argument about the propriety of awarding
Plaintiffs the reasonable expenses that they incurred to respond to its objections to the Magistrate
Judge’s Discovery Order by not addressing the issue in its briefing on these objections.
IT IS THEREFORE ORDERED that Defendant American Linen Supply of New
Mexico, Inc.’s Motion for Court to Reconsider [Its] Timely Filed Reply Brief is GRANTED IN
PART as to the consideration of its reply brief and DENIED IN PART in so far as it requests
reconsideration of the Court’s decision in its Memorandum Opinion and Order Overruling
Objections to the Magistrate Judge’s Discovery Order. Judgment on whether the Court should
6

Case 2:17-cv-00809-JCH-GBW Document 490 Filed 04/20/22 Page 7 of 7

reconsider its expense award in the Memorandum Opinion and Order Overruling Objections is
DEFERRED pending the completion of briefing on this issue. Plaintiffs’ Response on this issue
is due within fourteen (14) days of the entry of this Order and Defendant’s Reply is due within
fourteen (14) days of the filing of Plaintiff’s Response. The Court’s “stay of the submission of,
and opposition to, affidavits of reasonable attorney fees awarded by the Court in its Memorandum
Opinion and Order Overruling Objections (Doc. 474),” see Doc. 478 at 1, remains in effect.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

7