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Malibu Media, LLC v. Tashiro

United States District Court, S.D. Indiana, Indianapolis Division

June 9, 2015



MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Plaintiff's "Motion for Reconsideration of Report and Recommendation." [Dkt. 238.] For the reasons that follow, the Magistrate Judge DENIES Plaintiff's motion.

I. Introduction

This order assumes that the reader is familiar with the facts giving rise to the previous Report and Recommendation on Plaintiff's Motion for Entitlement to Fees and Sanctions. [Dkt. 228.] In brief, attorney Jonathan Phillips ("Phillips") undertook to simultaneously represent Defendants Kelley and Charles Tashiro. Malibu Media ("Plaintiff") filed a motion for sanctions against Defendants in which it accused both Defendants of perjury and spoliation of evidence. [Dkts. 130 & 159.] On November 11, 2014, the Court set Plaintiff's motion for an evidentiary hearing to be held on January 22, 2015. [Dkt. 165.]

The morning of the hearing, attorney Phillips advised the Court that he had just learned that Defendant Charles Tashiro planned to invoke his Fifth Amendment right to avoid testifying in a way that could incriminate himself. [Dkt. 206.] Phillips concluded that this created a conflict of interest between his clients, and Phillips committed to withdraw his appearance for Charles. [ Id. ] The Court then continued the hearing to allow Mr. Tashiro to seek new counsel. [ Id. ]

Following the continuance, Plaintiff filed its "Motion for Entitlement to Fees and Sanctions." [Dkt. 211.] Plaintiff sought to hold Defendant Charles and attorney Phillips liable for the fees and costs associated with preparing for the aborted evidentiary hearing, but the undersigned Magistrate Judge recommended that the Court deny Plaintiff's motion. [Dkt. 228.] Instead of objecting to the Report and Recommendation, Plaintiff filed the currently pending Motion for Reconsideration. [Dkt. 238.] Plaintiff's motion focuses on whether Phillips failed to satisfy Indiana Rule of Professional Conduct 1.7(b) in such a way that he "unreasonably and vexatiously" multiplied the proceedings within the meaning of 28 U.S.C. ยง 1927. The Magistrate Judge therefore will not address any other aspects of the prior Report and Recommendation. See, e.g., Ripberger v. Corizon, Inc., 773 F.3d 871, 879 (7th Cir. 2014) (undeveloped arguments are waived).

II. Discussion

"Motions for reconsideration 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). Plaintiff has not put forward any new evidence with its motion, and Plaintiff must thus be arguing that the undersigned's prior recommendation constituted a "manifest error[] of law or fact." This is a difficult standard to meet: "Motions to reconsider are granted for compelling reasons, ' such as a change in the law which reveals that an earlier ruling was erroneous, not for addressing arguments that a party should have raised earlier." Solis v. Current Dev. Corp., 557 F.3d 772, 780 (7th Cir. 2009) (citation omitted). It is accordingly "inappropriate to argue matters that could have been raised in prior motions" or to "rehash previously rejected arguments[.]" United States v. Zabka, No. 1:10-CV-1078, 2013 WL 9564253, at *2 (C.D. Ill. Aug. 19, 2013); accord, e.g., Caisse Nationale, 90 F.3d at 1270 ("Again we emphasize, apart from manifest errors of law, reconsideration is not for rehashing previously rejected arguments."); id. ("[A] motion to reconsider is not the appropriate vehicle to introduce new legal theories[.]"). This Court ultimately has "broad discretion" in deciding whether to grant a motion for reconsideration, Solis, 557 F.3d at 780, and for the reasons that follow, the Magistrate Judge exercises that discretion to deny Plaintiff's motion.

A. Indiana Rule of Professional Conduct 1.7

The previous Report and Recommendation explained that, until the morning of the originally scheduled evidentiary hearing, attorney Phillips had a reasonable belief that he could represent both Charles and Kelley Tashiro. [Dkt. 228 at 10-11.] In so finding, the undersigned Magistrate Judge determined that Phillips reasonably believed he was in compliance with Indiana's ethical rules governing concurrent conflicts of interest. The relevant rule provides as follows:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer ...

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