Christ Center of Divine Philosophy Inc v. Elam

Filing 45

ORDER denying 34 Defendant's Motion for Reconsideration on Changes in Injunctive Order. Signed by Honorable Timothy D. DeGiusti on 4/12/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHRIST CENTER OF DIVINE
PHILOSOPHY, INC.,
Plaintiff,
v.
ELLEN VERONICA ELAM,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. CIV-16-65-D

ORDER
Before the Court is Defendant’s Motion for Reconsideration on Changes in
Injunctive Order [Doc. No. 34]. Because Defendant is pro se, the Court liberally
construes her filings, but will not act as her advocate. James v. Wadas, 724 F.3d
1312, 1315 (10th Cir. 2013). Plaintiff has submitted its response in opposition [Doc.
No. 35]. The matter is fully briefed and at issue.
On January 28, 2016, Plaintiff commenced this action, alleging Defendant
infringed several copyrighted works owned by Plaintiff. On February 10, 2017,
default judgment was entered against Defendant for failing to answer or otherwise
respond to the suit, and the Court awarded Plaintiff statutory damages in the amount
of $80,000 and injunctive relief [Doc. Nos. 13-14]. On October 18, 2017, the Court
granted Plaintiff’s Motion to Modify Injunction and enlarged the scope of injunctive
relief to include all thirty-one (31) copyrighted materials identified in Plaintiff’s

Complaint [Doc. No. 32].On October 24, 2017, Defendant filed the present motion,
citing the discovery of “newly discovered evidence,” which Defendant contends
“uncover[s] a third set of [f]raud that is so easy to prove, it requires one to OPEN
the eyes and see it.” Mot. at 1 (Emphasis in original).
Although not formally recognized by the Federal Rules of Civil Procedure,
motions for reconsideration are routinely entertained, in one form or another, by
federal courts. Such motions “must do two things: First, [they] must demonstrate
some reason why the court should reconsider its prior decision. Second, [they] must
set forth facts or law of a strongly convincing nature to induce the court to reverse
its prior decision.” Shields v. Shetler, 120 F.R.D. 123, 126 (D. Colo. 1988) (citation
omitted).
The three main grounds that justify reconsideration are (1) an intervening
change in controlling law, (2) new evidence previously unavailable, and (3) the need
to correct clear error or prevent manifest injustice. Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). Absent extraordinary circumstances,
arguments that could have been raised in the original briefing on the dispute in
question may not be made in a motion for reconsideration. Id. Stated another way,
such motions are “not a second chance for the losing party to make its strongest case
or to dress up arguments that previously failed.” Voelkel v. General Motors Corp.,
846 F.Supp. 1482, 1483 (D. Kan. 1994) (citation omitted). Accordingly, because the
2

conditions that justify granting a motion to reconsider are rarely present, such
motions are disfavored. Brumark Corp. v. Samson Resources Corp., 57 F.3d 941,
944 (10th Cir. 1995) (“[A] motion for reconsideration is an extreme remedy to be
granted in rare circumstances....”).
The Court finds Defendant’s motion should be denied on two grounds. First,
Defendant’s motion seeks to re-litigate the validity of Plaintiff’s copyright
registrations, despite the fact that default judgment has been entered and the merits
of the case have long been confessed. See Tripodi v. Welch, 810 F.3d 761, 765 (10th
Cir. 2016) (noting that after default is entered, “a defendant admits to a complaint’s
well-pleaded facts and forfeits his or her ability to contest those facts.”) (citation
omitted); United States v. Craighead, 176 F. App’x 922, 924 (10th Cir. 2006)
(unpublished) (“The defendant, by [her] default, admits the plaintiff’s well-pleaded
allegations of fact, is concluded on those facts by the judgment, and is barred from
contesting on appeal the facts thus established.”) (citation omitted). As stated supra,
a motion to reconsider is not an opportunity for a party to assert claims that could
have been raised in the original briefing.
Second, a motion to reconsider based on newly obtained evidence is
appropriate if the party produces new evidence that could not have been obtained
through the exercise of due diligence. Cotracom Commodity Trading Co. v.
Seaboard Corp., 193 F.R.D. 696, 700 (D. Kan. 2000). In this regard, Defendant
3

makes no effort to show that she could not have obtained the evidence presented in
the motion through the exercise of due diligence. Defendant does not contend she
was either unable to or prohibited from obtaining any of the evidence in question
prior to the entry of default judgment. Service of process was obtained on August
25, 2016; Plaintiff’s Motion for Default Judgment was filed November 22, 2016;
and default judgment was entered February 10, 2017. Only after default judgment
was issued did Defendant appear and seek dismissal of the Complaint. See Mot. to
Vacate and Dismiss Complaints [sic] [Doc. No. 15]. Defendant makes no effort to
show why she could not have obtained the documents earlier and presented them to
the Court for consideration. Accordingly, the Court finds Defendant did not act with
due diligence to obtain the “new evidence” prior to the filing of her motion and her
Motion for Reconsideration should be, and is hereby, DENIED.
IT IS SO ORDERED this 12th day of April 2018.

4