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Sometimes when litigants lose a motion via an interlocutory order (that is, an order that is not a final judgment), they ask the court to reconsider the ruling, although rarely successfully. Judge Robert L. Miller recently addressed a motion to reconsider a ruling denying in part a defense motion for summary judgment; the opinion provides good guidance on whether and when such motions are appropriate. Patrick v. Cowen, 2017 U.S. Dist. LEXIS 36824 (N.D. Ind. March 15, 2017).
In Patrick, the defendants moved to reconsider the court’s denial of summary judgment on an FMLA claim. In addressing the motion, Judge Miller started with a discussion of the ability to reconsider interlocutory orders, writing: “Federal Rule of Civil Procedure 54(b) provides that a court may alter or amend an interlocutory order any time before entry of final judgment. See Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (‘[E]very order short of a final decree is subject to reopening at the discretion of the district judge.’). Unlike a motion to reconsider a final judgment, which must meet the requirements of Federal Rules of Civil Procedure 59 or 60, ‘a motion to reconsider an interlocutory order may be entertained and granted as justice requires.’ Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D. Ind. 1995).”
Judge Miller then described the governing standard: “Reconsideration of an interlocutory order may be appropriate when the facts or law on which the decision was based change significantly after issuance of the order, or when ‘the [c]ourt has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the [c]ourt by the parties, or has made an error not of reasoning but of apprehension. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). ‘These grounds represent extraordinary circumstances, and the granting of a motion to reconsider is to be granted only in such extraordinary circumstances … Indeed, the court’s orders are not mere first drafts, subject to revision and reconsideration at a litigant’s pleasure.’ United States Securities and Exch. Comm’n v. National Presto Indus., Inc., 2004 WL 1093390, at *2 (N.D. Ill. Apr. 28, 2004). Motions to reconsider serve a limited function: ‘to correct manifest errors of law or fact or to present newly discovered evidence.’ Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). A party seeking reconsideration can’t introduce new evidence or legal theories that could have been presented earlier or simply rehash previously rejected arguments. Id.”
Judge Miller denied the defense motion for reconsideration. Of general interest outside the FMLA prism, Judge Miller rejected one argument not raised in the original motion for summary judgment, writing, “But the court can’t consider this new legal argument that could have been argued earlier because it goes beyond the limited purpose of a motion to reconsider. Caisse Nationale de Credit Agricole 90 F.3d at 1269.”
Similarly, the court wrote on a related front, “[T]he defendants argue that this court should reconsider its April 2016 order because there is no evidence to support Mr. Patrick’s FMLA retaliation claim. In support, the defendants cite this court’s order, which noted that the evidence in the record wouldn’t support a finding of retaliation. But the defendants don’t claim that they moved for summary judgment on this claim, and as already noted, ‘Mr. Patrick [was]n’t required to come forth with evidence on a claim as to which summary judgment wasn’t sought.’ Id.”
Lastly, Judge Miller noted that the motion to reconsider included a second motion for summary judgment filed without leave of court, and declined to consider it as it was filed after the dispositive motion deadline.
Commentary — Motions to reconsider are rarely granted. The federal courts in Indiana have high caseloads, and barring a significant change in law or facts after issuance of the interlocutory order or other extraordinary reasons, such motions are not well received. Indeed, as Judge Tanya Walton Pratt has written, “a motion to reconsider is not an occasion to make new arguments.” Katz-Crank v. Haskett, 2014 U.S. Dist. LEXIS 95144, 4-5 (S.D. Ind. July 14, 2014). Indeed, such motions “are generally disfavored because ‘a re-do of a matter that has already received the court’s attention is seldom a productive use of taxpayer resources because it places all other matters on hold.’” Id.
7th Circuit Conference — The annual 7th Circuit Bar Association meeting and 7th Circuit Judicial Conference comes to Indianapolis April 30-May 2. This is a must-attend event for federal practitioners, with informative CLEs, a separate breakout session focusing on the Northern and Southern Districts of Indiana, and receptions and dinners with unique opportunity for bench and bar to mix. All federal judges in the 7th Circuit attend, and Justice Elena Kagan will speak at the main dinner on May 1. For more information see 7thcircuitbar.org/.•
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• John Maley — [email protected] — is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. The opinions expressed are those of the author.
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