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Interpreter Services, Inc v. Btb Technologies

March 22, 2012

INTERPRETER SERVICES, INC.,
PLAINTIFF,
v.
BTB TECHNOLOGIES, INC., AND
THOMAS M. DAFNOS, INDIVIDUALLY,
DEFENDANTS.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

ORDER

(Motion to Reconsider, Doc. 97) (Application for Fees, Doc. 96)

Pending are: BTB's Application and Affidavit for Attorney's Fees (Doc. 96) and Interpreter Services' Motion to Reconsider (Doc. 97) the Court's decision to award attorney's fees to BTB. Interpreter Services has filed a Memorandum (Doc. 98) in support of its Motion; the Affidavit of Robert Christenson (Doc. 99); and a Reply Brief (Doc. 102). BTB has filed a Brief in Response to Interpreter Services Motion to Reconsider (Doc. 100); and the Affidavit of Jeff Bratkiewicz (Doc. 101).

BACKGROUND

On December 29, 2011, the undersigned entered an Order which:

(1) Granted BTB's Motion for Sanctions (Doc. 39) under Federal Rule of Civil Procedure 26(g);

(2) Determined that the version of Bates pages 0434, 0435, and 0436 as found in EX 1 is fake; and;

(3) Directed BTB to submit appropriate attorney fee documentation on or before January 17, 2012.*fn1

On January 11, 2012, BTB submitted its affidavit and application for attorney's fees in the amount of $21,378.89. On January 27, 2012, Interpreter Services filed a Motion to Reconsider. In the alternative, Interpreter Services requests to reopen the hearing so that additional evidence can be considered. Interpreter Services does not challenge any of the attorney's fees or expenses submitted by BTB.

BACKGROUND

Interpreter Services does not cite the Federal Rule of Civil Procedure or the Local Rule under which it moves for reconsideration of the Court's December 29, 2011 Order. District of South Dakota Civil Local Rule of Practice 7.1 (B) provides in part, "the movant shall serve . . . a brief containing the specific points of law with the authorities in support thereof on which the movant relies, including the Federal Rule of Civil Procedure on the basis of which the motion is made." Interpreter Services' failure to cite authority has caused some confusion; neither party appears to know whether the pending Motion should be addressed to the undersigned or to Judge Schreier.

Although litigants often make them, the Eighth Circuit has noted that the Federal Rules of Civil Procedure do not mention a "motion to reconsider." Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir. 2000) (noting that Rule 59 applies when such a motion is made regarding a final order); Miller v. Kansas, 2010 WL 497651 (D. Kansas) (noting the Federal Rules do not recognize a "motion to reconsider" but that the District of Kansas Local Rules contain a provision for a "motion to reconsider" which allows a party to request a judge or magistrate judge to reconsider an order made by that judge or magistrate judge) (emphasis added).

When, as in this case, a party files a "motion to reconsider" a magistrate judge's nondispositive order*fn2 but does so after the fourteen day time limit for objections in Fed. R. Civ. P. 72 has expired, the magistrate judge may grant or deny the "motion to reconsider." If the parties are aggrieved by the magistrate judge's grant or denial of the "motion to reconsider" they follow the provisions of Fed. R. Civ. P. 72 to obtain review of the magistrate judge's grant or denial of the "motion to reconsider." See e.g. Hohe v. Knowledge Learning Center Corp., 2011 WL 1466490 (D. Kansas); see also Daley v. Mariott Intl., Inc. 415 F.3d 889, fn. 9 (explaining procedure for challenging merits of magistrate judge's order on non-dispositive pretrial motions).

The undersigned entered its Order granting BTB's Motion for Sanctions on December 29, 2011. Pursuant to Fed. R. Civ. P. 72(a), if Interpreter Services desired a review by the District Court, it was required to file objections to the Order within fourteen days of December 29, 2011.*fn3 Because Interpreter Services did not do so, the "motion to reconsider" is viewed as just that--a motion to reconsider by the Judge who entered the Order. Hohe v. Knowledge Learning Center Corp., 2011 WL 1466490 (D. Kansas).

DISCUSSION

A motion to reconsider is "an extreme remedy to be granted in rare circumstances." Hohe v. Knowledge Learning Corp., 2011 WL 1466490 (D. Kansas). "A motion to reconsider is appropriate when the court has obviously misapprehended a party's position or the facts or applicable law, or when the party produces new evidence that could not have been obtained through the exercise of due diligence." Schrag v. Dinges, 144 F.R.D. 121, 123 (D. Kansas 1992).

Imprudent motions to reconsider "waste judicial resources and obstruct the efficient administration of justice." Id. "A party who fails to present his strongest case in the first instance generally has no right to raise new theories or arguments in a motion to reconsider." Id. Likewise, although motions to reconsider "serve a valuable but limited function . . . they do not exist to permit losing parties to prop up arguments previously made or to inject new ones, nor to provide evidence or authority previously omitted. They do not, in short, serve to relieve a party of the consequences of its original, limited presentation." Equal Employment Opportunity Commn. v. Jack Marshall Foods, Inc., 2010 WL 55635 at *2-3 (S.D. Ala.). It is with this understanding of the limited purpose to be served that Interpreter Services' Motion to Reconsider, along with the accompanying documentation, has been carefully reviewed.

Interpreter Services' Brief (Doc. 100) and Christenson's Affidavit (Doc. 99) offer three reasons the Court should reconsider its December 29, 2011 Order granting BTB's Motion for Sanctions: (1) Christenson does not and did not concede that the version of the emails with which Interpreter Services supplemented its Rule 26 disclosures was in fact "fake"; (2) the emails were added to the record not for the purpose advancing Interpreter Services' position in this litigation or threatened additional litigation, but out of a duty to bring them to the Court's attention; and (3) Judges Cott and Berman were not persuaded to set aside the settlement agreement the New York litigation (Waite v. Shoenbach, et. al. 10 Civ. 3439 (S.D.N.Y.)). In the New York litigation, Mr. Waite based his motion to set aside the settlement agreement upon his claim that the defendants in that case (Shoenbach and Lifelinks) fraudulently misrepresented the authenticity of the emails.

For the reasons more fully explained below, these reasons do not suffice to reconsider the Court's December 29, 2011 Order.

1. Interpreter Services' Assertion the Version of BTB 0434, 0435 and 0436 as found in EX 1 is Not Fake, or May Be Authentic

Interpreter Services asserts that "as of the date it supplemented its Rule 26 disclosures with the fake emails, "there had been no factual or expert evidence present in either the New York case or the South Dakota case that the March 18 email was fake." Doc. 98, p. 6. Interpreter Services submitted the Affidavit of Robert Christenson which explains that its expert (Oliphant) "could not declare that the March 18 email was fake." Doc. 99 at ¶ 38. Interpreter Services did not present Mr. Oliphant's testimony at either of the two hearings which were held to determine which version of BTB 0434, 0435 and 0436 was the authentic one. "A party who fails to present his strongest case in the first instance generally has no right to raise new theories or arguments in a motion to reconsider." Schrag v. Dinges, 144 F.R.D. 121, 123 (D. Kansas, 1992). Likewise, although motions to reconsider "serve a valuable but limited function . . . they do not exist to permit losing parties to prop up arguments previously made or to inject new ones, nor to provide evidence or authority previously omitted. They do not, in short, serve to relieve a party of the consequences of its original, limited presentation." Equal Employment Opportunity Commn. v. Jack Marshall Foods, Inc., 2010 WL 55635 at *2-3 (S.D. Ala.). The hearsay opinion of Mr. Oliphant, therefore, is insufficient reason to reconsider the Court's conclusion about the authenticity of the version of BTB 0434, 0435 and 0436 found in EX 1.

Christenson's Affidavit also indicates "it is Christenson's position that at no time during the November 1, 2011 hearing did Christenson stipulate that Exhibit 1 was fabricated or 'fake.' Christenson finally believes that Exhibit 1 did not come from Bratkiewicz's office. Christenson stipulated to this fact after finally ...


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