Utah Republican Party v. Herbert et al
Filing
120
MEMORANDUM DECISION denying 108 Motion to Reconsider 106 Docket Text Order on 97 Motion. Signed by Magistrate Judge Dustin B. Pead on 4/28/15 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
Plaintiff,
CONSTITUTION PARTY OF UTAH,
Plaintiff and Intervenor,
v.
MEMORANDUM DECISION
Case No. 2:14-cv-00876-DN-DBP
District Judge David Nuffer
Magistrate Judge Dustin B. Pead
GARY R. HERBERT, et al.,
Defendants.
I.
INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 45.) This case
involves a dispute over certain changes to Utah’s election law, known as Senate Bill 54 from the
2014 legislative session (and modified by Senate Bill 207 from the 2015 legislative session). The
Court previously granted Senator Bramble’s motion to quash both because Plaintiff Utah
Republican Party (“UTGOP”) failed to respond by the expedited briefing deadline, and because
Senator Bramble is protected by the legislative privilege. (See Dkt. 106.) Presently before the
Court is Plaintiff motion to reconsider that decision. (Dkt. 108.)
II.
ANALYSIS
Motions to reconsider, the extent such motions are recognized, are disfavored. Whittington v.
Taco Bell of Am., Inc., No. 10-1884, 2012 WL 3705046, at *2 (D. Colo. Aug. 27, 2012) (citing
Bank of Waunakee v. Rochester Cheese Sales, Inc. ., 906 F.2d 1185, 1191 (7th Cir.1990)); see
Warren v. Am. Bankers Ins. of Fl., 507 F.3d 1239, 1243 (10th Cir. 2007) (stating that for twenty
years, the Tenth Circuit has “admonished counsel that the Federal Rules of Civil Procedure do
not recognize that creature known all too well as the ‘motion to reconsider’ or ‘motion for
reconsideration.’). A court may reconsider a prior ruling based on “(1) an intervening change in
the controlling law, (2) new evidence previously unavailable, [or] (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). Plaintiff suggests that reconsideration is justified based upon the first and third
considerations. (Dkt. 108.)
a. Change in controlling law
Plaintiff contends the law changed when the District Court purportedly made a comment
during the preliminary injunction hearing on April 10, 2015. Regardless of the content of the
District Court’s statement during oral argument, the District Court was not considering, let alone
ruling on, the motion to quash. Accordingly, there has been no intervening change in law to
justify reconsideration.
b. Clear error or manifest injustice
Next, Plaintiff claims that reconsideration is necessary to prevent clear error or manifest
injustice. Plaintiff recognizes that it must “set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” (Dkt. 116 (citing Shields v. Shelter, 120 F.R.D.
123 (D. Colo. 1988). Plaintiff has not sustained this burden.
First, Plaintiff’s reply conspicuously omits any mention of the Court’s intervening order
granting Defendants’ motion in limine. (Dkt. 115.) That order prohibits any discovery
concerning the purpose or intent of S.B. 54. Plaintiff does not discuss any conceivable purpose
for the deposition of Senator Bramble that would not violate the terms of that order.
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Next, Plaintiff only discusses the substance of the legislative privilege in a terse reference to
unprivileged extra-legislative actions. The case on which Plaintiff relies is quite different than
the case at bar because it involved a grand jury investigation into a Congressman’s agreement to
publish top-secret executive branch materials (the Pentagon Papers) though a private publishing
company. Gravel v. United States, 408 U.S. 606, 609–613, 622–25 (1972). Plaintiff does not
even attempt to show why the “compromise” it references here would fall outside the sphere of
the legislative privilege, nor how it relates to the Pentagon Papers. Further, even Gravel
recognized that the legislative privilege extends “when necessary to prevent indirect impairment
of [legislative] deliberations.” Id. at 625. Thus, Plaintiff has not sustained its burden to persuade
the Court that its order should be reconsidered to prevent clear error or manifest injustice.
c. Excusable neglect
Plaintiff seeks reconsideration based upon “excusable neglect,” citing to decisions under
Rule 60(b). (See Dkt. 180 at 2.) Defendants correctly point out that excusable neglect is not the
appropriate standard for a motion to reconsider. 1 Even under Plaintiff’s more lenient standard,
reconsideration is not justified here.
Plaintiff states that its counsel misread the Court’s order expediting briefing and
miscalendared the time for opposing the motion to quash. (Dkt. 108.) If counsel had not misread
the order, he would have requested additional time to respond. Plaintiff indicates that expedited
consideration of the motion was unnecessary because its counsel reached an agreement with
Senator Bramble’s counsel to postpone the deposition. Plaintiff believes the Court should have
inferred such an agreement when Plaintiff filed a notice withdrawing a subpoena for Bramble to
1
Courts have inherent power to reconsider interlocutory rulings. Warren v. Am. Bankers Ins.
of FL, 507 F.3d 1239, 1243 (10th Cir. 2007). Nonetheless, it would be unwise to do so using
overly-permissive standards because finality is compromised and motion practice could be
unnecessarily increased.
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appear at a hearing. In that notice, Plaintiff indicated it would respond to the motion to quash the
deposition subpoena “under the applicable rules.” (Dkt. 108 (quoting Dkt. 100).)
A review of the record demonstrates that Plaintiff’s described injury is self inflicted. Plaintiff
indicates it was surprised by the expedited briefing, but its own actions necessitated a
compressed timeline. Plaintiff issued the deposition subpoena fewer than fourteen days before
the proposed deposition. Thus, Plaintiff elected a short timeframe for resolution of any potential
objections. Next, Plaintiff’s cryptic statement that it would respond to Senator Bramble’s motion
“under the applicable rules” is insufficient to convey that a deposition has been postponed. This
is particularly true where the document at issue explicitly states that a separate hearing subpoena
is withdrawn and the immediately preceding sentence indicated that the “motion to quash as it
concerns the deposition subpoena remains pending.” Plaintiff’s agreement with opposing counsel
regarding the subpoena is commendable, but Plaintiff must apprise the Court of such agreements.
Next, Plaintiff treads dangerously close to suggesting that the Court may not modify a briefing
schedule if the parties agree to standard briefing. Such suggestion is in error. Plaintiff’s notice
suggested it would respond “under the applicable rules.” (Dkt. 100.) Those rules allow the Court
to shorten briefing periods. D.U. Civ. R. 7-1(b)(3)(B) (“The court may order shorter briefing
periods . . . .”).
Further, the neglect here is less excusable in light of prior missed deadlines. Plaintiff
concedes this is not the first time it has missed a deadline. (Dkt. 108 at 5.) Nor is this the first
time the Court has admonished Plaintiff to observe deadlines. (E.g. Dkt. 56 at 2 n.1.) Plaintiff
attempts to stack the times it has complied with deadlines against times it has not, attempting to
justify its admitted neglect here. Plaintiff’s compliance with some deadlines does not entitle it to
miss other deadlines. Litigation deadlines are not idle suggestions; they are critical to orderly
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litigation. Thus, Plaintiff has not demonstrated a proper basis for the Court to reconsider its prior
order quashing the deposition subpoena served on Senator Bramble.
III.
ORDER
Based on the foregoing, Plaintiff’s motion to reconsider is DENIED. (Dkt. 108.)
IT IS SO ORDERED.
Dated this 28th day of April, 2015.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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