Opinion
CIVIL ACTION No. 98-2564-CM
September 24, 2003
MEMORANDUM AND ORDER
On March 17, 2003, the court issued an order awarding attorneys' fees and costs to defendants and making plaintiff's counsel personally responsible for the award (Doc. 164). Pending before the court is plaintiff's counsel's Motion for Reconsideration of and Partial Relief from Interlocutory Order Awarding Sanctions in the Form of Costs and Attorneys' Fees (Doc. 178).
I. Background
Plaintiff filed this action on December 7, 1998, asserting claims under 42 U.S.C. § 1983 and 1985, and various state law claims. On January 27, 2000, the court dismissed with prejudice all of plaintiff's claims arising under §§ 1983 and 1985. On August 2, 2001, the court granted plaintiff's motion to voluntarily dismiss with prejudice his remaining claims against defendants, but the court denied defendants' request to condition plaintiff's voluntary dismissal upon an award of attorneys' fees. On September 6, 2001, however, the court granted defendants' request to conduct post-dismissal discovery for the purpose of seeking a factual basis to support their assertion of entitlement to attorneys' fees. The court also granted defendants leave to resubmit their motion seeking attorneys' fees and to incorporate any additional facts gathered from the post-dismissal discovery. Defendants filed a renewed motion requesting attorneys' fees, on May 24, 2002. On March 17, 2003, the court granted defendants' motion and awarded attorneys' fees under 28 U.S.C. § 1927. Pursuant to § 1927, the court imposed the fees against plaintiff's counsel personally as a result of his conduct. The court ordered defendants to submit an accounting of their excess fees and costs incurred as a result of plaintiff's counsel's misconduct.
II. Plaintiff's Motion for Reconsideration
Plaintiff's counsel filed a motion for reconsideration asking the court to reverse its March 17, 2003, order granting defendants' motion for attorneys' fees and costs under § 1927. Plaintiff's counsel argues that the court's award violates due process and that the award is unwarranted under § 1927.
A. Timing of Plaintiff's Counsel's Motion
Pursuant to District of Kansas local rule 7.3, a party may petition a court to reconsider its order. Motions seeking reconsideration of a court's non-dispositive order must be filed within ten days after that order is filed. D.Kan. Rule 7.3(b). The court has discretion to extend the time for a party to file, but the court also must consider the interplay of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure do not provide for a motion for reconsideration. United States v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997). Consequently, the Tenth Circuit considers such a motion filed more than ten days after the judgment as a motion seeking relief under Fed.R.Civ.P. 60(b). Id. Plaintiff's counsel's motion would fall into the catch-all category of Fed.R.Civ.P. 60(b), which allows a court to grant relief "for any other reason" to further the interests of justice. Such a motion, however, must be made within a reasonable time. Fed.R.Civ.P. 60(b).
Plaintiff's counsel filed his motion nearly five and one-half months after the court's March 17, 2003, order. Unfortunately, plaintiff's counsel's delinquent filing is not new to this litigation. Indeed, plaintiff's counsel's history of failure to meet deadlines is a substantial reason for the court's decision to award attorneys' fees under § 1927. The court concludes that plaintiff's counsel did not file his motion in a reasonable time. Nevertheless, considering the gravity of holding plaintiff's counsel personally responsible for defendants' excess attorneys' fees and costs, the court will review the motion rather than summarily denying it.
B. Motion for Reconsideration Standard
The court will consider plaintiff's counsel's motion as one to reconsider a non-dispositive order under local rule 7.3(b). A court may consider a motion for reconsideration of a non-dispositive order if the motion is based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. See Claytor v. Computer Assocs. Intern., Inc., 262 F. Supp.2d 1188, 1201 (D. Kan. 2003) (listing the three bases available under D.Kan. Rule 7.3(b)). A motion for reconsideration is not an opportunity for a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. See Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996). Such motions are not to be used as a "second chance when a party has failed to present its strongest case in the first instance." Prairie Band Potawatomi Nation v. Richards, 2003 WL 21536881, at *1 (D. Kan. July 2, 2003). Ultimately, the decision of whether to grant or deny a motion for reconsideration is committed to the court's discretion. GFF Corp. v. Assocd. Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997).
C. Procedural Due Process
Plaintiff's counsel first asserts that he was denied an opportunity to contest the court's award entered against him pursuant to § 1927. Plaintiff's counsel argues that because defendants did not cite § 1927 as a basis for an attorney fee award in its August 11, 2000, Motion for Award of Attorneys' Fees and Discovery Related Thereto (Doc. 118), plaintiff's counsel had no notice that the court was considering this type of sanction.
Plaintiff's counsel has repeatedly argued, since November 2000, that he had no notice that defendants were seeking attorneys' fees under § 1927. Defendants first argued for attorneys' fees under § 1927 in their September 26, 2000, Memorandum in Support of Defendants' Motion for Award of Attorneys' Fees and for Discovery Related Thereto (Doc. 121). Plaintiff's counsel asked for, and received, two extensions of time to file a response to defendants' motion. Plaintiffs counsel eventually filed his Memorandum in Opposition to Defendants' Motion for Award of Attorneys' Fees and for Discovery Related Thereto (Doc. 132), on November 21, 2000, in which he claimed that defendants' motion provided him with no notice of their intent to seek attorneys' fees pursuant to § 1927. Plaintiff's counsel nevertheless acknowledged defendants' claim assertion that they were entitled to an award under § 1927 because he argued against such an award.
The court mooted the issue of attorneys' fees in its September 6, 2001, order. But the court did grant defendants an opportunity, following discovery, to resubmit their motion requesting attorneys' fees.
On May 24, 2002, defendants renewed their motion for attorneys' fees. In particular, defendants' third argument in their Suggestions in Support of Defendants' Renewed Motion for Award of Attorneys' Fees and For Discovery Related Thereto (Doc. 143), requested attorneys' fees under § 1927. After asking for, and receiving, four extensions of time, plaintiff's counsel filed his response in which he again claimed no notice of defendants' claim under § 1927, but proceeded to argue against such an award under the statute.
Defendants' September 26, 2000, memorandum provided plaintiff's counsel with initial notice that defendants were seeking attorneys' fees against him pursuant to § 1927. Moreover, the court mooted defendants' request with its order of September 6, 2001, and required the parties to re-brief the issue of attorneys' fees, including the appropriate application of § 1927. The fact that plaintiff's counsel responded to both of defendants' motions with lengthy arguments of his own makes his claim that the court issued the § 1927 award sua sponte appear disingenuous. The court concludes that plaintiff's counsel had sufficient notice that defendants were seeking attorneys' fees against him under § 1927.
Plaintiff's counsel also asserts that he had no notice that defendants sought the award from him personally, rather than from the plaintiff. The plain text of the statute and defendants' motions requesting attorneys' fees dispel this argument, however. Section 1927 states that the court may require an attorney "to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." Also, defendants' initial motion and their renewed motion clearly state that they were seeking the award from plaintiff's counsel, pursuant to § 1927. The court concludes that plaintiff's counsel had sufficient notice that defendants were seeking attorneys' fees against him personally under § 1927.
D. Award of Attorneys' Fees Under 28 U.S.C. § 1927
Plaintiff's counsel next argues that personally sanctioning him under § 1927 is not warranted by law. The court reiterates, however, that a motion for reconsideration is not an opportunity to reargue issues decided by the court. Plaintiff's counsel must present new case law or evidence, or persuade the court that its March 17, 2003, order will result in manifest injustice. Plaintiff's counsel has not met any of these standards. The court already analyzed the relevant case law surrounding the imposition of sanctions under § 1927, reviewed plaintiff's counsel's behavior in this case, and discussed why § 1927 sanctions are appropriate. Plaintiff's counsel has not presented new case law or evidence in his favor. Instead, plaintiff's counsel resubmitted his arguments against an award under § 1927. Plaintiff's counsel may not use a motion for reconsideration as a second chance to argue the merits of this issue. Plaintiff's counsel's motion for reconsideration is denied.
III. Order
IT IS THEREFORE ORDERED that plaintiff's counsel's Motion for Reconsideration of and Partial Relief from Interlocutory Order Awarding Sanctions in the Form of Costs and Attorneys' Fees (Doc. 178) is denied.