Let's say you have an insurance company as a client, and the company doesn't want to defend a class action, relying on an alleged policy exclusion.
The insured and you both file cross-motions for sj before Judge Huck, and you wind up losing the motion because the Court finds there was a duty to defend.
What do you do?
Of course, the only logical option is to go back to the well on a motion for reconsideration and explain that Judge Huck simply screwed up in three major ways and thus committed "clear error."
Your first practice tip of the year comes courtesy of our newest federal jurist, Judge Scola -- we're of course delighted he's on the federal bench and thrilled he's finally able to write opinions that are published and available in the future as precedent -- you know, that whole "rule of law" thang.
Here he is helping an insurance company defendant on how to do basic research and brief writing, especially in the context of a motion for reconsideration:
After appearing at a calendar call on December 27, 2011 and announcing ready for trial and after being told the case was the number one case for trial on Tuesday, January 3, 2012 at 9:00 a.m., QBE filed this motion on Friday afternoon, December 30, 2011. In its Motion for Reconsideration, QBE takes no issue with the court’s ruling granting its motion for summary judgment in part. QBE claims, however, that the court’s order granting Ocean View’s Corrected Motion on QBE’s second and third affirmative defenses - which are premised on Ocean View’s alleged failure to comply with the policy’s post-loss obligations prior to filing this law suit – was wrongly decided. In support of its Motion for Reconsideration, QBE cites numerous opinions from the Southern District of Florida in cases involving this very same Defendant -- none of which were cited by QBE in its Response to the Corrected Motion for Summary Judgment. It boggles the mind to consider how QBE could not be aware of opinions in its own cases from the same federal district court and yet not cite those cases until after receiving an adverse ruling from the court.
You mean that's not a basis under the rule?
(At least it was worth burning up the midnight oil over the holidays both preparing for trial and scrambling to crank out a motion for reconsideration that went over like a Led Zeppelin.)
Defendant moves for reconsideration on the grounds that Plaintiff has known about Defendant's intent to assert the Motor Carrier exemption since May 25, 2011. At that time, Defendant sent Plaintiff an email with attachments containing a Motion for Leave to Amend its Answer and Affirmative Defenses and a Proposed Am ended Answer and Affirmative Defenses. Defendant, however, never filed the Motion for Leave to Amend. In the Motion for Reconsideration, Defendant states that the Motion for Leave to Amend and the Proposed Amended Answer and Affirmative Defenses "are not reflected in this Court's docket.'' There is only one reason for that - Defendant did not file them.In the Motion for Reconsideration, Defendant states that it has "discovered that its Motion for Leave to Amend and its proposed Amended Answer and Affirmative Defenses are not reflected in this Court's docket, and that there was never a ruling on the issue.'' See DE-75 (emphasis added). What Defendant fails to acknowledge is that it had a responsibility to monitor the docket in this matter and to be aware of the proceedings in this case. At the latest, Defendant should have discovered its failure to file the Motion to Amend when Defendant prepared its motion for summary judgment in August 201 1. If Defendant discovered its failure then, it did nothing to correct it. Defendant's recent discovery of its failure to file a motion, that was to be filed in May, is inexcusable and Defendant has not offered any reason why it failed to discover this sooner.
She wound up letting them amend their answer and assert the affirmative defense anyway.
In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.
No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.
I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.
If you strictly abide by the standard for motions for reconsideration, they are pretty darn hard to prevail upon.
They also require more or less a confession of error of some kind by the court, again something federal judges don't tend to do all too often.
That's why this order from Judge Seitz granting in part a motion for reconsideration is fairly surprising, and indeed refreshing in some respects.
It's also interesting that Judge Seitz appears to disagree with Judge Cooke's reasoning in Grovenor House as to privity in the warranty context, though she mostly relies on the reconsideration standard for refusing to follow this precedent.
Do any of you come here for legal analysis and opinion?
Judging from your search terms, let's leave that question unanswered.
But there are a dogged few, a ragtag bunch of judges, judicial staff, ham-and-schleppers and BigFirmers who -- in between copious sessions browsing for cat piano mashups and free x-rated content (sometimes simultaneously) -- actually come here to learn something.
So here's a lesson -- don't waste the Court's time raising new arguments you should have thought about the first time.
After this Court thoroughly and painstakingly reviewed the arguments raised by Plaintiff in opposition to the motion, which resulted in a material reduction of the fees and costs requested by Defendant, Plaintiff (still unsatisfied) seeks to start over and have the Court review the matter anew with arguments that could have, but were not, raised in a timely fashion in opposition to the original motion.
Oy, not good so far....
Having obtained only limited success through its original arguments in opposition to the motion for fees, Plaintiff – without any explanation or suggestion why any entitlement arguments could not have been raised earlier – simply asks that the Court exercise its discretion to reopen the matter and consider new legal theories. But the Motion presents no persuasive factual or legal basis for the Court to do so under the circumstances. To paraphrase Judge Birch, this too constitutes a second – but untimely – bite at the apple. The Court will not entertain these untimely arguments now and rests this Order entirely on that procedural basis.
I said Good Day Sir!
I agree with this as a policy matter.
Also, why would you not raise issues regarding entitlement (the form is bad, the release is bad, not everyone named etc.) as a threshold issue?
The only wrinkle is that the area of law -- offers of judgment/proposals for settlement under Fla. Stat. § 768.79 -- is wildly, hopelessly screwed up, and has been for decades. There are badly reasoned decisions, conflicting statutes, amendments to statutes, cases that deal with older versions of statutes, you name it.
Good thing our friends in Tallahassee are working hard on cleaning it all up!
