United States District Court, N.D. Indiana, Hammond Division
Fred A. Colvin, Chairman of the Board of Trustees, on behalf of BRICKLAYERS UNION LOCAL NO. 6 OF INDIANA PENSION FUND, et al., Plaintiffs,
ALAN D. STENSRUD d/b/a COUTURE SURFACES, et al., Defendants.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge.
matter is before the court on the Motion to Vacate November
30, 2017 Opinion and Order [DE 37] filed by the defendant,
Watson Commercial Group, Inc., d/b/a Couture Surfaces, on
December 19, 2017. For the following reasons, the motion is
plaintiffs initiated this matter on May 24, 2017, pursuant to
29 U.S.C §1132 and §1145, Employee Retirement
Income Security Act of 1974 (ERISA) and Section 301 of the
Labor-Management Relations Act, 1947, as amended, 29 U.S.C.
§185 (LMRA) to collect the delinquent fringe benefit
contributions and deductions owed by the defendants to the
plaintiffs. The court scheduled a Rule 16 Preliminary
Pretrial Conference for July 28, 2017. Prior to the Rule 16
conference, the defendants filed the Motion to Dismiss Counts
I, II, V, and VI of the Complaint [DE 15]. The briefing on
that motion currently is stayed, and the plaintiffs
voluntarily have dismissed Count V and VI.
to the Rule 16 conference, the parties filed their Federal
Rule of Civil Procedure 26(f) report that indicated on July
20, 2017, the parties held a planning meeting under Rule
26(f). In light of the parties' discussions at the
pretrial conference about the possibility of settlement, the
court did not enter a Rule 16(b) scheduling order or a
briefing schedule on the pending motion to dismiss. On
September 1, 2017, the plaintiffs served Watson with the
Plaintiffs' First Set of Interrogatories, Plaintiffs'
First Request for Production of Documents, and
Plaintiffs' First Request to Admit Facts and Genuineness
of Documents. The plaintiffs indicated that Watson did not
respond to the interrogatories or the request to produce
documents. Therefore, after attempting to get Watson to
respond fully to the discovery the plaintiffs filed the
Verified FRCP, Rule 37(a)(3)(B) Motion, With Self-Contained
Brief, to Compel Defendant Watson Commercial Group, Inc.,
d/b/a Couture Surfaces to Respond to Plaintiffs' Written
Discovery [DE 25] on November 2, 2017. Watson did not respond
to the motion to compel, and the court entered an Opinion and
Order on November 30, 2017 granting the motion.
has requested that the court vacate its November 30, 2017
Opinion and Order because the plaintiffs' motion to
compel was procedurally improper. The plaintiffs have filed a
response, and Watson has filed a reply.
court will construe Watson's motion as a motion to
reconsider. Although they are frequently filed, the Court of
Appeals has described a motion for reconsideration as
“a motion that, strictly speaking, does not exist under
the Federal Rules of Civil Procedure.” Hope v.
United States, 43 F.3d 1140, 1142 n.2 (7th Cir. 1994);
see Talano v. Northwestern Med. Faculty Found.,
Inc., 273 F.3d 757, 760 n.1 (7th Cir. 2001). This type
of motion “is a request that the [Court] reexamine its
decision in light of additional legal arguments, a change of
law, or perhaps an argument or aspect of the case which was
overlooked.” Ahmed v. Ashcroft, 388 F.3d 247,
249 (7th Cir. 2004) (internal quotation omitted); see
Seng-Tiong Ho v. Taflove, 648 F.3d 489, 505 (7th Cir.
2011) (explaining that a court can amend its judgment only if
the petitioner can demonstrate a manifest error of law or
present newly discovered evidence) (citing Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008); United
States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008)
(“A district court may reconsider a prior decision when
there has been a significant change in the law or facts since
the parties presented the issue to the court, when the court
misunderstands a party's arguments, or when the court
overreaches by deciding an issue not properly before
it.”). In Frietsch v. Refco, Inc., 56 F.3d 825
(7th Cir. 1995), the Court of Appeals did not question the
availability of a motion to reconsider but stated:
It is not the purpose of allowing motions for reconsideration
to enable a party to complete presenting his case after the
court has ruled against him. Were such a procedure to be
countenanced, some lawsuits really might never end, rather
than just seeming endless.
56 F.3d at 828; see Oto v. Metro. Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000) (“A party may not use a
motion for reconsideration to introduce new evidence that
could have been presented earlier.”); Divane v.
Krull Electric Co., 194 F.3d 845, 850 (7th Cir. 1999);
LB Credit Corp. v. Resolution Trust Corp., 49 F.3d
1263, 1267 (7th Cir. 1995). Ultimately, a motion for
reconsideration is an “extraordinary remedy to be
employed sparingly in the interests of finality and
conservation of scarce judicial resources.” Global
View Ltd. Venture Capital v. Great Central Basin
Exploration, 288 F.Supp.2d 482, 483 (S.D.N.Y. 2003)
(internal quotation omitted).
Watson contends that the plaintiffs failed to file a
certificate of service as required under Federal Rule of
Civil Procedure 5(d)(3) which provides as follows:
(3) Electronic Filing, Signing, or Verification. A
court may, by local rule, allow papers to be filed, signed,
or verified by electronic means that are consistent with any
technical standards established by the Judicial Conference of
the United States. A local rule may require electronic filing
only if reasonable exceptions are allowed. A paper filed
electronically in compliance with a local rule is a written
paper for purposes of these rules.
Pursuant to N.D. Ind. L.R. 5-2,
(a) Electronic Service Permitted. Electronically
filed papers may be served electronically if service is
consistent with ...