United States District Court, M.D. North Carolina
THOMAS H. KRAKAUER, Plaintiff,
DISH NETWORK, LLC, Defendant.
Catherine C. Eagles, District Judge
MEMORANDUM OPINION AND ORDER
has filed a motion for reconsideration of the Court's
decision on the plaintiff's motion for judgment. Doc.
422. To the extent Dish's motion is based on
“reorganized” information and the arguments made
in Section B of the brief, see Doc. 423 at 5-8, the
motion will be denied.
interlocutory order is subject to reconsideration at any time
prior to the entry of a final judgment.”
Fayetteville Inv'rs v. Commercial Builders,
Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). Rule 54(b)
gives courts broad flexibility to revise interlocutory orders
“as the litigation develops and new facts or arguments
come to light.” Carlson v. Boston Sci. Corp.,
856 F.3d 320, 325 (4th Cir. 2017). It is not, however, a
mechanism to give an unsuccessful party an automatic second
bite at the apple.
example, in Carlson, the plaintiff asked the court
to reconsider its order granting the defendant's motion
for summary judgment based on the plaintiff's failure to
produce evidence sufficient to establish proximate cause. In
support of the motion to reconsider, the plaintiff offered
additional evidence. The Fourth Circuit upheld the trial
court's decision refusing to reconsider the matter,
noting that “[w]e have consistently affirmed denials of
motions to reconsider summary judgment rulings where the
motion is merely a vessel for the very evidence that was
initially lacking in opposition to summary judgment.”
Id. at 326.
case, the plaintiff moved for judgment as to several thousand
class members pursuant to an order allowing the motion to be
filed and granted as to those persons “identified fully
and without contradiction in the existing data.” Dec.
351 at 16, 21, 26. The plaintiff supported the motion with
extensive documentary evidence and an affidavit from its
expert, who had reviewed and summarized the existing data.
See Doc. 407 at 3-7; Doc. 382-2.
response, the defendant made tactical decisions to submit new
information not part of the existing data in an effort to
create disputes over who was entitled to recover the damages
awarded by the jury and to not respond to the data as
organized and submitted by the plaintiff. See Doc.
407 at 7-10. As the Court noted in the order defendant seeks
to vacate, “Dish chose to dump thousands of pages of
new data on Dr. Krakauer and to make broad-brush claims of
inconsistencies largely unsupported with specific citation to
existing data.” Id. at 9-10. The Court
“struggled to determine” when the opinions of
Dish's expert were based on new data and when they were
based on existing data, as the defendant did not provide a
breakdown of its challenges with specific citation.
Id. at 9-10. The Court rejected Dish's attempt
to rely on evidence outside the existing data and refused to
cull through Dish's data dump to locate evidence within
the existing data to support Dish's arguments.
Id. at 10 n. 9. The Court was well within its
discretion to “refus[e] to ferret out the facts that
[Dish's] counsel had not bothered to excavate.”
Cray Commc'ns, Inc. v. Novatel Comput. Sys.,
Inc., 33 F.3d 390, 395-96 (4th Cir. 1994).
now returns to the Court with evidence it says is limited to
the existing data. It asserts that the existing data
establishes inaccuracies and mistakes in the work of the
plaintiff's expert and creates disputes over whether the
persons identified in the motion for judgment are entitled to
recover damages without submitting a claim. This is very
similar to the situation in Carlson and is an effort
by Dish to obtain exactly the second bite at the apple that
cases that refuse to give a losing litigant a chance to make
arguments and produce evidence that could have been presented
in connection with the original motion are legion, as are
secondary authorities supporting such decisions. As
eloquently stated by the District Court in Maryland:
Hindsight being perfect, any lawyer can construct a new
argument to support a position previously rejected by the
court, especially once the court has spelled out its
reasoning in an order. It is hard to imagine a less efficient
means to expedite the resolution of cases than to allow the
parties unlimited opportunities to seek the same relief
simply by conjuring up a new reason to ask for it.
Potter v. Potter, 199 F.R.D. 550, 553 (D. Md. 2001)
(Grimm, M.J., memorandum & order), quoted with approval
in Pinney v. Nokia, Inc., 402 F.3d 430, 453 (4th
Cir. 2005); accord, e.g., Cray
Commc'ns, 33 F.3d at 395 (noting that a party
failing to set forth evidence sufficient to defeat summary
judgment may not later submit supplemental evidence
purportedly demonstrating a dispute of material fact without
legitimate justification as to why it failed to present that
evidence during summary judgment proceedings); see generally
Official Comm. of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir.
2003) (“[W]here litigants have once battled for the
court's decision, they should neither be required, nor
without good reason permitted, to battle for it
again.”); Wootten v. Virginia, 168 F.Supp.3d
890, 893 (W.D. Va. 2016); see also 18B Charles Alan
Wright, et al., Fed. Prac. and Proc. Juris. § 4478 &
n.42.5 (2d ed. 2017) (limiting the grounds for a motion for
reconsideration protects both the courts and the parties
against the burdens of unyielding advocates' repeat
are times when a motion for reconsideration is appropriate,
and “[m]otions for reconsideration of interlocutory
orders are not subject to the strict standards applicable to
motions for reconsideration of a final judgment.”
Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d
505, 514 (4th Cir. 2003). Such situations are discretionary.
Id. at 514-15.
Dish has not provided any good reason why the Court should
reconsider its decision. In its motion for reconsideration
and supporting brief, Dish says it is submitting “the
same evidence that it previously submitted, ” Doc. 423
at 8, but it does not direct the Court's attention to any
place in the record where the Court could confirm that
assertion.Nor does it contend that the existing data
evidence as “previously submitted” was in a
comprehensible form. It offers no clear reason for not
directly responding in the prior briefing to the
plaintiff's evidence on its own terms. Instead, Dish now
seeks to provide what it could have provided to the Court
when the plaintiff's motion for judgment was pending, and
what it should have provided if it wanted the Court to
consider that evidence. This effort to continue to shift
tactics after losing and to string out the litigation will be
rejected without requiring the plaintiff to respond. The
Court will not consider this reorganized evidence, and the
motion to reconsider based on this reorganized evidence will
extent the motion to reconsider is based on other arguments,
it is held open. Should other aspects of Dish's motion
suffer from the same problem, the parties may address it in
the briefing. See, e.g., Doc. 423 at 10
(defendant's brief asserting that Dish “is
investigating whether there are other instances in which the
monetary damages Plaintiff seeks on behalf of individuals on
the Judgment List are inconsistent with the jury's
findings at trial”).
extent Dish's motion is directed to the plaintiffs
alleged failure to follow the Court's instructions in
submitting the revised judgment list, see Doc. 423
at Section D, pp. 11-13, the Court's preliminary review
of the record indicates there may be merit to Dish's
contention. The parties are advised that the Court may treat
this aspect of the motion to ...