Opinion
CIV NO. 00-102DJS/RLP
June 27, 2001
ORDER
THIS MATTER comes before this Court upon Defendants Motion for Reconsideration filed May 24, 2001 (Docket No. 48). The parties have consented, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 to the undersigned to conduct any and all proceedings in this case, including the entry of a final judgment. By the instant motion, Defendants request that the Court reconsider its denial of their Motion for Summary Judgment in its April 16, 2001 Memorandum Opinion and Order (Docket No. 45).
Defendants assert that the Courts ruling did not address the effect of 29 U.S.C. § 203(o) on Plaintiffs claims in light of collective bargaining and practices regarding payment for peliminary and postliminary activities at Defendants worksite. Defendants assert that this issue was raised in the parties cross motions for summary judgment and in the parties supplements to those motions. As this motion was filed on May 24, 2001, Plaintiffs response was due no later than June 7, 2001. D. N.M. LR-Civ. 7.3. Plaintiffs failed to timely respond to the motion and did not file a brief in response until June 18, 2001. Consequently, their brief has not been considered.
As a preliminary matter, the Court notes that the parties failed to seek or obtain Court permission to file their supplements to the motions for summary judgment. The filing of a surreply requires permission of the Court. D. N.M. LR-Civ. 7.6(b). Consequently, the Court did not consider the supplemental briefs in rendering its decision regarding the motions for summary judgment.
Regardless of whether the Court considered the supplemental briefs, Defendants failed to raise either 29 U.S.C. § 203(o) or the caselaw cited in their Motion to Reconsider in any previous pleading filed with this Court. The supplemental briefs concerned the report and recommendation of a Magistrate Judge in the District of Alabama. The parties discussed the question of whether Plaintiffs activities of putting on and removing protective smocks, hairnets, rubber boots, and sanitizing their hands constituted work within the meaning of the Fair Labor Standards Act. Defendants did not raise the effect of bargaining between them and Plaintiffs union upon that determination. Further, they did not include the affidavit of Henry Ares, which is attached to the instant motion and was not executed until after the Courts Memorandum Opinion and Order was filed.
Motions to reconsider are not addressed in the Federal Rules of Civil Procedure. Hatfield v. Board of County Comm'rs for Converse County, 52 F.3d 858, 861(10th Cir. 1995) ("The Federal Rules of Civil Procedure recognize no `motion for reconsideration.'").
Consequently, [t]he Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. Western Resources, Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484, 1994 WL 708220 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828, (1992). Estate of Flake v. Hoskins, 124 F. Supp.2d 666, 667 (D.Kan. 2000). Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence. Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion. . . . Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time. Rothwell Cotton Co. v. Rosenthal Co., 827 F.2d 246, 251 (7th Cir. 1987) (quotations and citations omitted).
In this instance, Defendants grounds for reconsideration are improper. The material they wish the Court to consider in reversing its earlier ruling was available at the time they submitted their motion for summary judgment but was not presented are argued to the Court. Accordingly, the instant motion will be denied.
IT IS THEREFORE ORDERED that Defendants Motion for Reconsideration is denied.