Opinion
Civil Action No. 98-2564-CM.
November 23, 2004
MEMORANDUM AND ORDER
Pending before the court is plaintiff's Motion for Reconsideration of or to Alter and Amend Memoranda and Orders Awarding Sanctions in the Form of Costs and Attorney's Fees (Doc. 187). Plaintiff seeks reconsideration of three Orders: (1) the court's March 17, 2003 Order which, inter alia, awarded defendants attorney's fees and costs to be paid directly from plaintiff's counsel for his abuse of the judicial process (Doc. 164); (2) the court's September 24, 2003 Order denying plaintiff's motion for reconsideration regarding the award of attorney's fees and costs (Doc. 185); and (3) the court's August 31, 2004 Order fixing the award of attorney's fees and costs to $20,672.22 (Doc. 186).
I. Background
The court will consider plaintiff's counsel's motion as one to reconsider a non-dispositive order under Local Rule 7.3(b). A court may consider a motion for reconsideration of a non-dispositive order if the motion is based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. See Claytor v. Computer Assocs. Intern., Inc., 262 F. Supp. 2d 1188, 1201 (D. Kan. 2003) (listing the three bases available under D. Kan. Rule 7.3(b)). A motion for reconsideration is not an opportunity for a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. See Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996). Moreover, such motions are not to be used as a "second chance when a party has failed to present its strongest case in the first instance." Prairie Band Potawatomi Nation v. Richards, 2003 WL 21536881, at *1 (D. Kan. July 2, 2003). Ultimately, the decision of whether to grant or deny a motion for reconsideration is committed to the court's discretion. GFF Corp. v. Assocd. Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997).
III. Analysis
With the exception of a few paragraphs, Plaintiff's Motion for Reconsideration is identical to its August 25, 2003 Motion for Reconsideration (Doc. 178), which was denied by this court in its September 24, 2004 Order (Doc. 185). The court is unable to conceive of a more blatant re-hashing of arguments previously addressed. Brown, 101 F.3d at 1332. For this reason, the court will disregard any repeated arguments and focus solely on plaintiff's new arguments.
The following sections of plaintiff's Motion for Reconsideration (Doc. 187) are the only portions of his motion that were not copied directly from his original Motion for Reconsideration: the third paragraph starting on page 2; section III starting on page 13, and small portions of the conclusion.
A. Timeliness
As a preliminary matter, defendants argue that plaintiff's current Motion for Reconsideration was not timely because plaintiff is seeking reconsideration of the court's May 17, 2003 Order awarding attorney's fees and costs to defendants but plaintiff failed to file his motion within ten days of this Order. Plaintiff argues that, pursuant to Fed.R.Civ.Proc. 59(e), motions for reconsideration need only be filed within ten days of the court's final judgment, and final judgment did not occur in this case until the court fixed the dollar amount of plaintiff's sanctions.
The Tenth Circuit has stated that "[r]ules 59 and 60 are inapplicable before entry of final judgment, and rulings made before entry of final judgment are interlocutory in nature and may be changed within the trial court's discretion." Dodd Ins. Servs. v. U.S. Fidelity Guar., 1992 WL 14547 (10th Cir. Jan. 27, 1992) (citing Wilson v. United States, 669 F. Supp. 563, 565 (E.D.N.Y. 1987), overruled on other grounds, Guttridge v. United States, 927 F.2d 730, 733-34 (2d Cir. 1991)). Moreover, judgment with respect to Rule 11 sanctions is not final until the court rules on the specific dollar amount of monetary sanctions. Id. (citing Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154 (10th Cir. 1986) (per curiam)). Plaintiff's Motion for Reconsideration was filed on September 15, 2004, or ten business days within the court's August 31, 2004 Order fixing the amount of plaintiff's sanctions. Therefore, following Dodd, plaintiff's Motion for Reconsideration is timely.
B. Substantive Arguments
The new arguments in plaintiff's Motion for Reconsideration focus on the contention that this court awarded attorney's fees and costs to defendants simply because plaintiff's counsel requested too many extensions. While plaintiff did file 15 extensions of time prior to being sanctioned, delaying this litigation by approximately 495 days, plaintiff's contention gives an inaccurate description of the reason this court granted defendants' request for attorney's fees and costs. This court granted sanctions to defendants pursuant to 28 U.S.C. § 1927 because plaintiff's counsel unreasonably and vexatiously multiplied the proceedings by filing a claim on his client's behalf under 42 U.S.C. § 1983 and § 1985 when no clear legal basis supported such claims and then sought numerous extensions of time either on the day of the relevant deadline or after the deadline had passed. Plaintiff's assertions to the contrary are misleading, if not false.
More importantly, the new language in plaintiff's Motion for Reconsideration makes no mention of plaintiff's counsel filing extensions at or after the proscribed deadline or his 42 U.S.C. § 1983 and § 1985 suits, therefore failing to directly address the very orders he wishes this court to reconsider. Moreover, plaintiff fails to meet any of the three standards under which this court may grant a motion for reconsideration. Plaintiff's argument does not amount to an intervening change in controlling law or the availability of new evidence, leaving a grant of reconsideration available only if this court finds a need to correct clear error or prevent manifest injustice. Claytor, 262 F. Supp. 2d at 1201.
Plaintiff's main argument is that, with the exception of one case cited by this court in its order awarding defendants attorney's fees and costs, no federal court has used 28 U.S.C. § 1927 as a basis for penalizing an attorney for asking for too many extensions. As stated above, however, plaintiff's counsel was not sanctioned merely because he requested numerous extensions. On many occasions, the Tenth Circuit has upheld and imposed the award of sanctions under 28 U.S.C. § 1927 for similar reasons. See Steffens v. Steffens, 2000 WL 702390 (10th Cir. May 26, 2000) (affirming the district court's decision to impose sanctions pursuant to 28 U.S.C. § 1927 because plaintiff's § 1983 claim was "legally frivolous and factually groundless"); Doyle v. The Okla. Bar Ass'n, 998 F.2d 1559 (10th Cir. 1993) (ordering plaintiff's counsel to show cause as to why attorney's fees and costs should not be assessed against them under 28 U.S.C. § 1927 for filing a frivolous and vexatious appeal); Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159 (10th Cir. 1985) (affirming the district court's decision to impose sanctions pursuant to 28 U.S.C. § 1927 for asserting claims for which no factual or legal basis existed and maintaining litigation in bad faith); Morris v. Adams-Millis Corp., 758 F.2d 1352 (10th Cir. 1985) (affirming the district court's decision to impose sanctions against plaintiff's counsel pursuant to 28 U.S.C. § 1927 for bad faith).
Plaintiff's counsel failed to assert any new arguments supporting the proposition that this court committed clear error or caused manifest injustice when it awarded defendants attorney's fees and costs to compensate for plaintiff's abuse of the judicial process. Accordingly, plaintiff's motion for reconsideration is denied.
IT IS THEREFORE ORDERED that plaintiff's Motion for Reconsideration of or to Alter and Amend Memoranda and Orders Awarding Sanctions in the Form of Costs and Attorney's Fees (Doc. 187) is denied.