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Performance Dynamics, Inc. v. Flynn

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

March 10, 2017

PERFORMANCE DYNAMICS, INC, Plaintiff,
v.
TIMOTHY W. FLYNN et al., Defendants.

          ENTRY ON DEFENDANTS' MOTION TO RECONSIDER

          HON. WILLIAM T. LAWRENCE, JUDGE

         On July 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 DENIED.

         I. DISCUSSION

         The 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:

         On 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.

         The 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”).

         A. Reconsideration of Denial of Request for Hearing

         The 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.[1]

         The 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.

         In 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.

         Resubmission 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.

         The 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[2] - 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)).

         The 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 ...


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