IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSEPH E. STIGLITZ,
Plaintiff
v.
RITA M. BANK,
Defendant
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) Civil Action No.05-1826 RJL
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PLAINTIFF'S MOTION FOR RECONSIDERATION OF AUGUST 25,2010
ORDER GRANTING DEFENDANT'S MOTION TO PRECLUDE PURPORTEI)
DAMAGES EVIDENCE AND REOUEST FOR CLARIFICATION
Plaintiff, Joseph E. Stiglitz ("Stiglitz"), by and through his undersigned counsel,
hereby respectfully submits this motion for reconsideration of this Court's Order of
August 25,2010 ('oOrder"), which granted Defendant Rita Bank's ("Defendanf') motion
to preclude plaintiff s purported damages evidence. This motion is pursuant to Fed. R.
Civ. P. 60(b) on the basis of mistake, inadvertence, and other reasons justi$ing relief. In
addition, Stiglitz also respectfully requests that this Court clarify the effect of the Order.
For sake of brevity, Stiglitz adopts and incorporates the arguments presented in his
Response in Opposition to Defendant's Motion to Preclude Plaintiffs Purported
Damages Evidence as if fully restated herein. SeePaper No. 54.
A Request for Hearing and proposed Order are being filed concunently with this
motion.
Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 1 of 9
STANDARD FOR RECONSIDERATION
Federal Rule of Civil Procedure 60(b) permits aparty on motion and just terms, to
petition the District Court to reconsider an order granted by mistake, inadvertence, or for
other reasons that justify relief. Fed. R. Civ. P. 60(bX1),(bX6). Courts have universally
interpreted "other" to mean any other reasons than those enumerated in the above rule.
Baltia Airlines, Inc., v. Transaction Management, Inc.,98 F.3d 640,642 (C.4.D.C.,
1996). Rule 60(b) can be a vehicle for avoiding needless appeals and grants this Court
substantial discretion in ruling on motions for reconsideration. Centerþr Nuclear
Responsibility, Inc., v. U.S. Nuclear Regulatory Com'n, 781F.2d935,940 (C.A.D.C.
1986). So long as the moving party demonstrates a meritorious claim, the Court may
grant this motion. Lepkowskí v. U.S. Dept. of Treasury,804 F.2d 1310, 1314 (C.A.D.C.,
re86).
ARGUMENT
I. PRECLUSION OF STIGLITZ'S PURPORTED DAMAGES EVIDENCE
RESULTED FROM INCOMPLETE JUDICIAL OVERSIGHT
A party may petition the District Court to reconsider an order granted by mistake.
Fed. R. Civ. P. 60(bxl). The inclusion of the term "mistake" within Rule 60(b) and the
liberalization of the Rule since its 1948 Amendment provide the Court with an
opportunity, in its own discretion, to reconsider an Order based upon either its own
potential error, or that of a party. See, e.g. D.C. Federation of Civíc Associations v.
Volpe, 520 F.2d 451 (C.A.D .C., 1979); Carter v. llatkíns, 995 F.2d 305 (C.A.D.C.,
1993). Stiglitz's timely response to the Order and the reasons set forth below,
demonstrate the need for this Court to reconsider its Order.
Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 2 of 9
A. All Applicable District Court Rules Should Applv Before Issuine an Order
The Local Rules of the United States District Court for The District of Columbia
("Local Rules") govern all proceedings within the Court's jurisdiction. LCvR 1.1(a).
Prejudice, injustice, and preventable appeals result when the court applies procedural
rules in some proceedings, but not in others. So too here, the Local Rules should apply to
every aspect of Stiglitz's case. Stiglitz submitted his Memorandum of Points and
Authorities in Opposition to Defendant's Motion to Preclude Plaintiffls Purported
Damages Evidence on March 24,2010 ("stiglitz Memo," attached hereto as Exhibit A).
In his Memorandum, Stiglitz explicitly informed this Court that the Defendant failed to
discuss with Stiglitz her anticipated motion to preclude his purported damages as the
Local Rules require. (Stiglitz Memo, p. 8). After filing the Stiglitz Memo raising this
procedural mishap on the Defendant's behalt on April 20,2010, the Defendant submitted
a Reply Memorandum in Support of Motion to Preclude Plaintiffs Purported Damages
Evidence. ("Reply Memo," attached hereto as Exhibit B).
The Defendant's Reply Memo responded to every point of opposition within the
Stiglitz Memo, except the most vital point which revealed that the Defendant failed to
inform Stiglitz of her intention to file a motion to preclude his damages evidence, in
accordance with the Local Rules. The Defendant merely mentions in her Reply Memo
"extensive ongoing discussions" between the parties to justiff her failure to adhere to the
Local Rules. (Reply Memo, p.6-7, FN 2.). This vital omission reveals the obvious: the
Defendant was and is well aware of her mistake to discuss the actual filing of the motion.
Without exceptions, Rule 7(m) of the District Rules provides:
"Before filing any nondispositive motion in a civil action, counsel shall discuss with
opposing counsel, either in person or by telephone, in a good-faith effort to determine
Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 3 of 9
whether there is any opposition to the relief sought and, if there is opposition, to
narrow the areas of disagreement." LCvR 7(m).
At no point in time did the Defendant ever come forth in a good faith effort to discuss
with Stiglitz her nondispositive motion; she carelessly filed the motion with absolute
disregard for the Local Rules. If the Defendant made a good-faith effort to discuss her
intentions before filing the motion, Stiglitz would have been given the opportunity, as
the rule mandates, to determine his opposition and to come to an agreement with the
Defendant. Stiglitz was denied this opportunity and was unfairly prejudiced as a result.
This Court inadvertently overlooked this important procedural dilemma when
considering the Defendant's motion. Consequently, this Court issued an Order which, in
all fairness, obstructs Stiglitz from receiving appropriate relief. The Court order
effectively precludes Stiglitz, as a party, from providing any damages evidence.
Yet, herein remains the formidable paradox. The Defendant audaciously
criticized and hypocritically precluded Stiglitz from proffering evidence on account of
procedural gray areas concerning expert witnesses, when she in tum, committed
disclosure effors to a more obvious degree. The Defendant cannot draw emphasis upon
procedural shortcomings and refuse to incorporate these rules into her own practice.
Moreover, this Court should not permit the Local Rules to apply in some instances and
not others. In granting this Order, this Court effectively approved of a party's complete
disregard for following mandatory Local Rules, and essentially issued this Order on such
a premise. Accordingly, Stiglitz respectfully requests this Court reconsider its Order
because of this mistake.
Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 4 of 9
B. The Court Issued the Order Inadvertentlv and Should Reconsider its
Action
Even if the Court was not mistaken when it issued the Order, the Court
inadvertently overlooked the mandatory procedures for filing motions under the Local
Rules, as stated above. Rule 60(b) provides that this Court, in addition to grounds of
mistake, may provide appropriate relief to Stiglitz from this Order based upon grounds of
inadvertence. Fed. R. Civ. P. 60(bX1). Since the Defendant did not comply with the
mandatory Local Rules at the time she filed her nondispositive motion, and because the
Court inadvertently failed to recognize this dilemma when it granted the Order, Stiglitz
respectfully requests that this Court grant him relief from the Order on grounds of the
Court's inadvertence.
C. The Defendant Misinterpreted and Misapnlied this Court's Precedent
In her Reply Memo, the Defendant cites St. Paul Mercury Ins. Co. as authority to
exclude Stiglitz's testimony as a hybrid factlexpert witness. The application of this
authority is flawed for several reasons. First, this Court did not exclude all of the
testimony of the two hybrid factlexpert witnesses in question. See e.g., St. Paul Mercury
Ins. Co. v. Capitol Sprinkler Co.,246 F.R.D. 56 (D.D.C. 2007). Second, this Court
prevented testimony on damages assessments made either after litigation commenced or
independent of assessments of damages as a function of the witness's job as an insurance
adjuster. Id. Stiglitz's expected testimony on damages is not derived from assessments
made after litigation commenced; his knowledge of the damages assessments occuned
before this litigation commenced. Finally, both expert witnesses in St. Paul Mercury Ins.
Co. were employees of the party designating the experts, whereas here, Stiglitz himself
is both apafty to this case as well as a qualified hybrid fact/expert witness who was
Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 5 of 9
neither retained, nor specially employed for this litigation. Stiglitz, as a party, should be
permitted to testify as to the damages he incurred as a result of the Defendant's
negligence, especially since he identified himself as a potential expert, provided Answers
to Interrogatories outlining his damages, was deposed on three occasions by the
Defendant, and provided the Defendant with an Excel spreødsheet on whích he made
his cølculatíons. While the Defendant has apparently attempted to create the appearance
of prejudice by asserting that she has never received the "electronic version of the
spreadsheet," she fails to apprise this Court that Stiglitz provided her with apdfversion
ofthe spreadsheet and a hard-copy. Copies ofthe relevant correspondence attaching or
enclosing said document are collectively attached hereto as Exhibit C.
D. Stielitz Never Retained or Specially Employed Himself as an Expert
Within the Meanins of Federal Rule of Civil26(aX2XB)
The Defendant enoneously argued that Federal Rule of Civil26(a)(2)(B) required
Stiglitz to submit an expert report because Stiglitz was either retained or specially
employed to provide expert testimony. However, Stiglitz did not employ either of these
two methods in order to designate himself as an expert witness. "In the generally
accepted meaning of the term in everyday usage, 'retained' or'specially employed'
ordinarily implies some consideration for being
oretained' or'specially employed"' Ager
v. Jane C. Stormant Hosp. & Training Sch, For Nurses, 622F.2d 496,4g81l0th Cir.
1980). Here, Stiglitz did not give consideration to himself in exchange for his own
testimony, in this case which he is the Plaintiff. The absence of consideration renders the
26(a)(2)(B) expert rcport rcquirement inapplicable to Stiglitz. Even though Stiglitz is not
required to submit this report, he has submitted to the Defendant the basis of his
testimony subsequent to his proper designation as an expert witness. Moreover, the
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Defendant deposed Stiglitz on three occasions and also has notice of his purported
damages evidence within Stiglitz's Answers to Defendant's Interrogatories and
spreadsheet. The fact that this Court precluded the testimony of Stiglitz's prior expert
witness (Michael Cragg) because Stiglitz failed to timely disclose Cragg's testimony,
does not mean that the content and sufficient facts and data of Cragg's projected
testimony may never be replicated. Accordingly, Stiglitz should be able to testifr as a
hybrid faclexpert witness and offer his purported damages evidence.
II. PRECLUSION OF EVIDENCE OF STIGLITZ'S PURPORTED DAMAGES IS
NOT HARMLESS ERROR
The preclusion of evidence of Stiglitz's purported damages requires that justice
intervene to preserve Stiglitz's rights to recover potential damages. Federal Rule of Civil
Procedure 61 indicates that courts should disturb an Order when justice so requires due to
preclusion of evidence affecting a party's substantial right. Fed. R. Civ. P. 61. A party's
substantial rights are affected when the error is so prejudicial that it affected the outcome
of District Court proceedings. United States v. Olano, 507 U.5.725,734 (1993). Here,
the error concerning the preclusion of evidence of Stiglitz's purported damages is so
prejudicial to this case, that in the event this Court does not reconsider its order, the
resulting evidential preclusion will effectively impair Stiglitz's ability to participate in
proceedings that should exemplify the fairness and integrity of this Court.
Consequently, such error is not harmless and is so prejudicial that any judgment, verdict,
or order subsequently issued should be set aside.
Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 7 of 9
III. STIGLITZ ADDITIONALLY REOUESTS THIS COURT TO CLARIF"T THE
EFFECT OF THE INITIAL ORDER PRIOR TO RECONSIDERATION
Stiglitz, in addition to requesting this Court to reconsider its Order, respectfully
requests a clarification on the effect of the Order. The Order is unclear as to whether its
effect was meant to preclude all evidence of purported damages set forth in Stiglitz's
interrogatory responses, or whether this Court intended to preclude only certain evidence.
CONCLUSION
Plaintiff Joseph E. Stiglitz respectfully requests that this Court reconsider
the issuance of its August 25,2010 Order for the above reasons.
ly submitted:
WHITWORTH SMITH, LLC
2l0l Defense Highway
Crofton, Maryland 2l I I 4-2401
Phone: (410)721-7169
Fax: (410) 793-0291
DWhitworth@wslegalmal. com
fulþfu,?,'/ Lffi
Law Offices of Linda Hamilton
1300 Mercantile Lane, Suite 149
Largo, Maryland 20774
Phone: (301)925-7833
Fax: (301) 925-8368
PGLAWI@aol.com
Attorneys for Plaintiff
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Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 8 of 9
CERTIF'ICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of September, 2010, a copy of the
foregoing Motion for Reconsideration of August 25, 2010 Order Granting Motion to
Preclude Purported Damages Evidence and Request for Clarification was sent via
electronic filing and first-class mail, postage prepaid, to Richard A. Simpson, Esquire,
WILEY REIN, LLP,1776 K Street, N.W., Washington, D.C. 20006.
id G. Whitworth, Jr.
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Case 1:05-cv-01826-RJL Document 60 Filed 09/02/10 Page 9 of 9
