Zarecor et al v. Morgan Keegan & Company Inc

Filing 36

ORDER denying 29 Motion for Reconsideration. Signed by Judge Samuel H. Mays, Jr on 05/28/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

In re REGIONS MORGAN KEEGAN
SECURITIES, DERIVATIVE and
ERISA LITIGATION
This Document Relates to:
Herschel Zarecor, III, et al.
v. Morgan Keegan & Co., Inc.
No. 2:12-cv-02341-SHM-dkv

)
)
)
)
)
)
)
)
)

2:09-md-2009-SHM

Case No. 12-2341

ORDER DENYING MOTION FOR RECONSIDERATION

Before the Court is Defendant Morgan Keegan & Company,
Inc.’s (“Morgan Keegan”) Motion for Reconsideration of the
Court’s Order Denying Plaintiffs’ Motion to Transfer their case
to the Eastern District of Arkansas, and Notice of Suggestion of
Remand to the United Stated Judicial Panel on Multidistrict
Litigation (“JPML”).

(Mot. for Recon., ECF No. 29.)

On May 19,

2012, Plaintiffs filed two Motions to Transfer their case to the
Eastern District of Arkansas.

(ECF No. 16; ECF No. 17.)

Morgan

Keegan did not file a response to Plaintiffs’ Motions within the
time allowed by the Western District of Tennessee Local Rules.
(See ECF No. 21.)

On February 28, 2013, the Court entered an

Order Denying Plaintiffs’ Motion to Transfer (“February 28

Order”) because authority to transfer and remand cases in
multidistrict litigation is vested in the JPML.
ECF No. 21.)

(Feb. 28 Order,

The Court’s February 28 Order also served as a

Notice of Suggestion of Remand from the Court to the JPML
pursuant to the rules and precedent of the JPML.

(Id.)

On

March 8, 2013, Plaintiffs filed a Motion to Remand with the
JPML.

(Mot. for Remand, ECF No. 27.)

Morgan Keegan apparently

filed a Notice of Objection to Conditional Remand Order with the
JPML but did not file it with this Court.

(See ECF No. 28.)

On

March 14, 2013, Plaintiffs filed a Response to Morgan Keegan’s
Notice of Objection to Conditional Remand Order with the JPML.
(Pls.’ Resp. to Obj., ECF No. 28.)

On March 15, 2013, Morgan

Keegan filed the instant Motion for Reconsideration with the
Court.

(Mot. for Recon.)

18, 2013.

Plaintiffs filed a Response on March

(Pls.’ Resp. to Recon., ECF No. 30.)

Morgan Keegan

filed a Reply to Plaintiffs’ Response on March 25, 2013.
(Def.’s Reply, ECF No. 35.)
For the following reasons, Morgan Keegan’s Motion for
Reconsideration is DENIED.
I.

Background

The background of this case is stated in the Court’s February
28 Order.
II.

Standard of Review

2

A motion for reconsideration of an interlocutory order may be
granted if it complies with the requirements of Federal Rule of
Civil Procedure 54(b) and of Western District of Tennessee Local
Rule 7.3.1 Rule 54(b) states that “any order or decision...that
adjudicates

fewer

liabilities

of

than

fewer

all

than

the

all

claims

the

or

parties

the

rights

does

not

and

end

the

action as to any of the claims or parties and may be revised at
any time before the entry of final judgment adjudicating all the
claims and all the parties’ rights and liabilities.”
Circuit

recognizes

that

Rule

54(b)

gives

The Sixth

district

authority to hear motions for reconsideration.

courts

Rodriguez v.

Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th
Cir.

2004).

In

the

Sixth

Circuit,

“courts

will

find

justification for reconsidering interlocutory orders when there
is

(1)

an

intervening

change

of

controlling

law;

(2)

new

evidence available; or (3) a need to correct a clear error or
prevent manifest injustice.”

Id.

Courts in this District rely

on Local Rule 7.3 for further guidance.

See, e.g., Bullwinkel

v. United States DOE, No. 11-1082, 2013 U.S. Dist. LEXIS 25445,
at

*5-6

(W.D.

Tenn.

Jan.

17,

1

2013);

Ward

v.

Shelby

Cnty.

Morgan Keegan’s Motion does not comply with the requirements of Local Rule
7.2. It includes neither a proposed order nor a certificate of consultation
with the parties. W.D. Tenn. R. 7.2(a)(1)(A)-(B). Because no rule would
prevent Morgan Keegan from refiling a conforming motion, and because the
Court prefers to expedite the final determination of this matter, the Court
will consider the Motion.

3

Sheriff’s Dep’t, No. 10-02308, 2012 U.S. Dist. LEXIS 118359, at
*4 (W.D. Tenn. Aug. 22, 2012).
Under

Local

Rule

7.3,

“[b]efore

the

entry

of

a

judgment

adjudicating all of the claims . . . in a case, any party may
move, pursuant to Fed. R. Civ. P. 54(b), for the revision of any
interlocutory order made by that Court.”

W.D. Tenn. R. 7.3(a).

The moving party must specifically show:
(1) A material difference in fact or law from that which
was presented to the Court before entry of the
interlocutory order for which revision is sought, and
that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at
the time of the interlocutory order; or
(2) the occurrence of new material facts or a change
of law occurring after the time of such order; or
(3) a manifest failure by the Court to consider
material facts or dispositive legal arguments that
were
presented
to
the
Court
before
such
interlocutory order.
W.D. Tenn. R. 7.3(b); see also Reynolds v. FedEx Corp., No.
09-2692-STA-cgc, 2012 U.S. Dist. LEXIS 172751, at *14 (W.D.
Tenn. Dec. 4, 2012).
“Motions to reconsider . . . are used sparingly and in rare
circumstances.”

In re Southeastern Milk Antitrust Litig., No.

2:07-CV-208, 2011 U.S. Dist. LEXIS 95784, at *5 (E.D. Tenn. Aug.
25, 2011).

Although a court can grant motions to revise its

prior rulings, it “‘should not do so in the vast majority of
instances, especially where such motions merely restyle or
reshash the initial issues.’”

Id. (quoting White v. Hitachi

4

Ltd., No. 3:04-CV-20, 2008 U.S. Dist. LEXIS 25240, at *1 (E.D.
Tenn. March 20, 2008)).

Local Rule 7.3(c) “specifically

prohibits a party from using a Motion for Reconsideration to
‘repeat any oral or written arguments made by the movant in
support of or in opposition to the interlocutory order that the
party seeks to have revised.’”

Reynolds, 2012 U.S. Dist. LEXIS

172751, at *15 (quoting W.D. Tenn. R. 7.3(c)).
III. Analysis
Morgan Keegan argues that the Court should reconsider its
February 28 Order because Plaintiffs did not serve their Motions
to Transfer properly.

Morgan Keegan alleges that the Motions,

which were filed in the Electronic Court Filing System (“ECF”),
were never physically mailed to its counsel and, therefore, that
it did not have an opportunity to respond.

Morgan Keegan also

raises several substantive arguments about the merits of the
representations made by Plaintiffs to the Court on which the
Court based its recommendation to the JPML.

(Mot. for Recon.)

The parties agree that Morgan Keegan was not physically served
with Plaintiffs’ Motions although the Motions were properly
filed on the Court’s ECF Docket.
Recon.)

(See Id.; Pls.’ Resp. to

Their dispute concerns which party is at fault for any

failure of service and whether any failure should vacate the
Court’s February 28 Order.

For the reasons stated below, a

5

motion for reconsideration is not an appropriate vehicle to
address this dispute.
Morgan Keegan’s Motion does not comply with the requirements
of Local Rule 7.3(b), and reconsideration is unwarranted.
Morgan Keegan’s claim is that it did not present any arguments
to the Court in opposition to Plaintiffs’ Motions for Remand
because Plaintiffs allegedly failed to serve it properly.
Morgan Keegan appears to contend that the Court’s February 28
Order, which does not account for any of its factual or legal
arguments because it did not present any, results in manifest
injustice.

Claims of clear error and manifest injustice are

insufficient grounds for reconsideration in this District.

See

Bullwinkel, 2013 U.S. Dist. LEXIS 25445, at *6 (stating that the
Rules “do[] not allow motions for reconsideration that do not
fall within the three enumerated categories but are, instead,
based on the need to prevent manifest injustice.” (internal
quotations omitted)); Biel Loanco III-A, LLC v. Labry, 862 F.
Supp. 2d 766, 787 (W.D. Tenn. 2012) (stating that the
requirement “to specifically show one of the three elements” of
Rule 7.3(b) is “[i]n addition to the Sixth Circuit’s
requirements”).
Local Rule 7.3 is explicit, “any party may move, pursuant to
Fed. R. Civ. P. 54(b), for the revision of any interlocutory
order made by that Court on any ground set forth in subsection
6

(b) of this rule.

Motions to reconsider interlocutory orders

are not otherwise permitted.”
added).

W.D. Tenn. L.R. 7.3(a) (emphasis

As stated above, there are only three permissible

grounds for reconsideration in Rule 7.3(b), and Morgan Keegan’s
submission fails to “specifically show” any of them.

Id. at

7.3(b).
First, Morgan Keegan does not allege “a material difference in
fact or law from that which was presented to the Court before
entry of the interlocutory order for which revision is sought,
and that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at the
of the interlocutory order.”

Id. at 7.3(b)(1).

time

Morgan Keegan

did not present any factual or legal arguments directed to
Plaintiffs’ Motions before the entry of the February 28 Order.
More importantly, all of the substantive arguments made by
Morgan Keegan in its Motion are based on law and facts that were
available to it at the time of the Order, and it does not
attempt to show otherwise.

(See generally Mot. for Recon.; Mot.

for Recon. Exhibits; ECF No. 29-1.)

Morgan Keegan’s Motion is a

vehicle to state arguments in opposition to Plaintiffs’ Motions
to Transfer that it did not make previously because of its
failure to respond.
Second, Morgan Keegan does not show “the occurrence of new
material facts or a change of law occurring after the time of
7

such order.”

W.D. Tenn. L.R. 7.3(b)(2).

It does not allege

that there have been any such changes and, as stated above,
relies exclusively on facts and precedent that were available to
it at the time the February 28 Order was entered.
Third, Morgan Keegan does not show “a manifest failure by the
Court to consider material facts or dispositive legal arguments
that were presented to the Court before such interlocutory
order.” Id. at 7.3(b)(3).

Morgan Keegan did not previously

present any of the facts or arguments that it seeks to have the
Court consider now and does not attempt to show that the Court
failed to consider any facts or arguments timely presented by
the Plaintiffs.
Even if the Court were to reconsider its Order on the basis of
manifest injustice alone, Morgan Keegan’s claim that it was
denied due process by a failure of service would not satisfy
that standard.

The Court denied Plaintiffs’ Motions to Transfer

and, regardless of the deference Morgan Keegan believes the JPML
will give to the Court’s Suggestion of Remand, the JPML has the
authority to decide that issue.

(February 28 Order.)

Morgan

Keegan has the right to be heard before the JPML in opposition
to Plaintiffs’ Motion to Remand both on Plaintiffs’ alleged
failure to serve and on its alleged substantive grounds.
apparently exercised that right.

It has

(See Pls.’ Resp. to Obj.)

8

There has been no denial of due process, and no manifest
injustice flows from the Court’s February 28 Order.
Morgan Keegan has not satisfied the requirements of a motion
for reconsideration.
IV.

Its Motion is therefore DENIED.

Conclusion

For the foregoing reasons, Morgan Keegan’s Motion for
Reconsideration of the Court’s February 28 Order is DENIED.

So ordered this 28th day of May, 2013.

s/ Samuel H. Mays, Jr.___
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

9