United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION TO
HON.WILLIAM T. LAWRENCE, JUDGE
18, 2016, the Court granted the Plaintiff's motion to
enforce mediation agreement and requested that the parties
submit to the Court a proposed injunction within fourteen
days. See Dkt. No. 115. The Court granted two
extensions of time for the parties to submit the proposed
injunction. See Dkt. No. 117 & 119. Instead of
filing a proposed injunction, the Defendants filed the
instant motion on August 25, 2016 (Dkt. No. 120). The
Defendants ask the Court to reconsider its decision to deny
the parties' request for a hearing and also ask the Court
to reconsider in its entirety its Entry on the
Plaintiff's motion to enforce mediation agreement. The
Defendants further request, in the alternative, that the
Court reform the mediation agreement. For the reasons
explained below, the Defendants' motion to reconsider is
Court incorporates by reference the background information
set forth in its July 18, 2016, Entry granting the
Plaintiff's motion to enforce mediation agreement. For
ease of reference, the Court reiterates the following points
of information contained in its July 18, 2016, Entry:
April 20, 2015, a settlement agreement was executed at a
court-ordered settlement conference (the
“Agreement”). The Agreement was memorialized on
seven pages, including two pages containing handwritten
mark-ups to a document that had been provided by the
Plaintiff's counsel to defense counsel on April 17, 2015;
a sheet of notebook paper with handwritten notes; and three
pages containing handwritten mark-ups to a proposed permanent
injunction entry provided by the Plaintiff's counsel to
defense counsel on April 16, 2015.
Defendants' counsel agreed to compose a clean,
typewritten version of the Agreement. On June 4, 2015, the
Defendants' counsel sent a typed document entitled
“Settlement Agreement and Mutual Release” to the
Plaintiff's counsel. The typed document intentionally
omitted the following term from the Agreement: “No
other instrumented soft tissue treatment shall be provided at
any such facility” (the “Omitted Term”).
Reconsideration of Denial of Request for Hearing
Defendants seek a hearing because they assert that they
“can and will present evidence, clarify or explain
their prior arguments, respond to the Court's questions,
and otherwise be heard on a matter of great importance to
them and their livelihoods.” Dkt. No. 120 at 3. The
Defendants note that the Court stated in a footnote to its
Entry that neither party provided the Court with information
suggesting that they believed an evidentiary hearing
necessary. See Id. at 4. As the Defendants correctly
indicate, however, they provided such information to the
Court in the conclusion of their response to the
Plaintiff's motion to enforce mediation agreement.
See Id. (quoting Dkt. No. 112 at 21). At that time,
the Defendants suggested that they would call a number of
witnesses who “would testify as to the applicable
professional ethical obligations, the settlement conference
and subsequent negotiations, IASTM, the disputed sentence and
its implications under the corporate practice of medicine
doctrine, and the issues discussed in this brief and the
supporting exhibits.” Dkt. No. 112 at 21. The
Defendants maintain that the reasons it presented in its
earlier request remain valid reasons for a hearing. Dkt. No.
120 at 4. The Court, however, has considered evidence
pertaining to all areas that the Defendants suggested they
would discuss at a hearing and finds no reason to reconsider
previously rejected arguments.
Defendants also now indicate that they will “provide
further evidence that they in fact advised the mediator,
opposing counsel, and opposing parties that they could not
ethically agree to any provision that did not include such
modifying language and therefore would not do so, ”
id. at 2, and that they “have presented
additional evidence that they did in fact bargain for the
‘recommend and encourage' language to apply to [the
Omitted Term], ” id. at 4. They did not,
however, specify what this new evidence is, and they instead
refer only to the prior affidavit of the Defendants'
counsel, which was submitted to this Court prior to its July
18, 2016, Entry. See, id.
drafting its July 18, 2016, Entry, the Court considered
evidence, including the affidavit of the Defendants'
counsel, that the Defendants advised the Magistrate Judge,
the Plaintiff, and the Plaintiff's counsel that they
“‘would not agree to any provision . . . that
would limit the use of treatments that individual physical
therapists in their professional judgment deemed necessary
and appropriate for their patients.'” Dkt. No. 115
at 4 (quoting Dkt. No. 112 at 4). In addition, at the time of
its Entry, the Court reviewed the Defendants' evidence
that it bargained for language modifying the Omitted Term.
See, e.g., id. at 8-9. The Court further
understood at the time of its Entry that the Defendants
attempted for months to modify the Omitted Term following its
execution of the Agreement.
to the Court of previously rejected arguments is not an
appropriate use of a motion to reconsider. This Court's
opinions are not intended as first drafts subject to revision
and reconsideration at the litigant's pleasure. The
Defendants have not given a good reason to alter the
Court's prior entry. The Court does not require further
evidence clarifying the Defendants' prior arguments. It
understands perfectly well the Defendants' position:
“Undersigned counsel [Benjamin C. Fultz] signed the
agreement in question without the modifying language that
[the Defendants argue] was supposed to accompany the [Omitted
Term]. The inclusion of the [Omitted Term] without
modification was a mistake.” Dkt. No. 120 at 5.
fact remains that the Defendants - both their counsel,
Benjamin C. Fultz, and Defendant Laurence Benz, who is also a
president, owner and member, partner, and/or principal of
Defendant Texas Physical Therapy Specialists, PC; and a
principal, member, and/or partner of Defendant Evidence in
Motion, LLC - signed the Agreement, which included the
Omitted Term. As previously explained by the Court,
“[u]nder Indiana law, a party to a contract is presumed
to understand and assent to the terms of the contracts he or
she signs.” Dkt. No. 115 at 9 (quoting John M.
Abbott, LLC v. Lake City Bank, 14 N.E.3d 53, 56
(Ind.Ct.App. 2014) (internal quotation omitted)).
Defendants also now wish to “present evidence that the
consequences on their businesses and professional practices
of not including the modifying language [i.e.,
adding ‘recommend and encourage' to the Omitted
Term] are so significant that the Defendants would not have
knowingly ever agreed to a settlement that did not include
the modifying language.” Dkt. No. 120 at 2. As the
Court has previously stated, it is not this Court's
responsibility to protect parties from their own oversights.
Dkt. No. 115 at 9-10 (citing Glass v. Rock Island Ref.
Corp., 788 F.2d 450, 454-55 (7th Cir. 1986); Beverly
v. Abbott Labs., 817 F.3d 328, 331 (7th Cir. 2016); and
Pohl v. United Airlines, Inc., 213 F.3d 336, 337
(7th Cir. 2000)). Evidence concerning the ramifications to
the Defendants of having executed the Agreement does not in
any way assist the Court in ruling on the Plaintiff's
motion to enforce the Agreement. The Court refuses to grant a
hearing on this basis and therefore denies the
Defendants' request for a hearing.
Reconsideration of Entry to Enforce ...