Opinion
Case No. 2:02CV431DAK
May 30, 2003
ORDER
This matter is before the court on Receiver Robert G. Wing's Motion to Reconsider this Court's February 12, 2003 Memorandum Decision and Order Regarding Return of Funds, Robert and Susan Covinos' Motion for Clarification of Interest Regarding Order of February 12, 2003, and the Receiver's Motion to Stay Execution of Memorandum Decision and Order Regarding Return of Funds. The court does not believe that a hearing would significantly aid the determination of these motions. Having fully considered all the pleadings, memoranda, and other materials submitted by the parties and further considered the law and facts relevant to these motions, the court enters the following Order.
MOTION TO RECONSIDER
The Receiver moves, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, for this court to reconsider its February 12, 2003 Memorandum Decision and Order Regarding Return of Funds. Rule 54(b) provides that in the absence of a decision by this court to certify the entry of judgment as to one claim, "any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
It is within the court's discretion to reconsider a previous order. Anderson v. Deer Co., 852 F.2d 1244, 1246 (10th Cir. 1988). In Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981), the Tenth Circuit explained that
When a court enunciates a rule of law in the course of a given case, the law of the case doctrine generally requires the court to adhere to the rule throughout the proceedings. 1B Moore's Federal Practice P 0.404(1) at 402-03. The rule is one of expedition, designed to bring about a quick resolution of disputes by preventing continued reargument of issues already decided. Roberts v. Cooper, 61 U.S. (20 How.) 467, 481, 15 L.Ed. 969 (1858); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967). Unlike res judicata, the rule is not an "inexorable command," but is to be applied with good sense. Murtha, 377 F.2d at 431-32; see Uniformed Sanitation Men Ass'n, Inc. v. Commissioner of Sanitation, 426 F.2d 619 (2d Cir. 1970), cert. denied, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972). When a lower court is convinced that an interlocutory ruling it has made is substantially erroneous, the only sensible thing to do is to set itself right to avoid subsequent reversal. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979), 1B Moore's Federal Practice P 0.404(1) at 407. . . . Courts have generally permitted a modification of the law of the case when substantially different, new evidence has been introduced, subsequent, contradictory controlling authority exists, or the original order is clearly erroneous. See Fuhrman v. United States Steel Corp., 479 F.2d 489, 494 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973); Murtha, 377 F.2d at 431-32.
A motion for reconsideration is an "inappropriate vehicle to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion. Absent extraordinary circumstances, . . . the basis for the second motion must not have been available at the time the first motion was filed." Servants of the Paracletes v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). "It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Id. A motion to reconsider must be made upon grounds other than a mere disagreement with the court's decision and must do more than rehash a party's former arguments that were rejected by the court.
The Receiver claims that although it previously argued that the $650,000 Commerce Bank check was a "teller's check" it was actually a "cashier's check" which was not subject to a stop order and finally paid upon its deposit into 4NExchange's account. The Receiver further argues that the Covinos did not conclusively demonstrate that the checks were not finally paid prior to the entry of the Freeze Order, the court should not have construed the Freeze Order as precluding the provisional credits from becoming final, the fact that the provisional funds were commingled evidences that the funds were the property of 4NExchange, the settlements from the Covinos checks were actual not fictional, and the Covinos had no right to stop payment of the cashier's check.
The Receiver has not demonstrated that any new evidence has become available that was not available at the time of the previous hearing and briefing on the Covinos' motion for return of funds. The Receivers new arguments were available to him at the time the court first decided the issue. The court's prior decision was not based solely on the fact that the Receiver claimed the $650,000 check was a teller's check, and the Receiver has made no attempt to establish, by way of affidavit or other evidence, that the $650,000 check is actually a "cashier's check." The court concludes that the Receiver's motion merely advances new arguments that were available to the Receiver at the time of the original motion and his motion for reconsideration is improper.
In addition, the Receiver's motion does not demonstrate any clear or substantial errors of law in the court's prior Order. Rather, the Receiver's arguments consist of disagreements with the court's conclusions and a rehashing of issues already dealt with by the court. The Receiver has not demonstrated any issues on which the court misapprehended the facts or misunderstood his arguments. Nor has the Receiver raised any new issues that call into question the correctness of the court's prior order. The court declines to exercise its discretion to reconsider or revise its February 12, 2003 Memorandum Decision and Order Regarding Return of Funds. Accordingly, the Receiver's Motion to Reconsider is denied.
MOTION FOR CLARIFICATION OF INTEREST
The Covinos have filed a motion requesting that the court clarify its February 12, 2003 Memorandum Decision and Order Regarding Return of Funds to direct the Receiver to account for and pay over to the Covinos the interest that has accrued on the Covinos' funds during the time that those funds have been in the control and possession of the Receiver, approximately May 4, 2002. The Receiver argues that the court should exercise its discretion and limit an award of interest to the date the Covinos filed their motion to intervene in this action, November 26, 2002. The Receiver provides a letter demonstrating that the Covinos knew they had a claim in May 2002 but chose to wait until November 2002 to file a motion to enforce it.
This is not a typical case where funds have been interpleaded or deposited pending the resolution of a matter. All investors with 4NExchange will suffer to some extent from their involvement with the company. The Covinos are fortunate that they receive a full return of their funds merely because they happened to invest a day or two after others who may receive little if anything in return. Therefore, the court finds that it should exercise its discretion and limit the amount of interest awarded. The court concludes that although the Covinos are entitled to a return of funds, their entitlement to interest on those funds should be limited to the date of their motion to intervene, November 26, 2002, and the interest awarded should be subordinate to administrative expenses.
MOTION TO STAY
The Receiver has moved to stay execution of the Memorandum Decision and Order Regarding Return of Funds pending determination of the Motion to Reconsider. Because the court has not ruled on this motion before its ruling on the Motion to Reconsider, the motion is essentially moot. The court finds that the Receiver's Motion to Reconsider was brought in good faith and in the best interests of the receivership estate. Therefore, the court concludes that the Covinos have not been unduly harmed by a delay in the execution of the Memorandum Decision and Order pending this court's determination of the Motion to Reconsider. To the extant that the Motion to Stay is not moot, it is granted.
CONCLUSION
For the foregoing reasons, the Receiver's Motion to Reconsider is DENIED. The Covinos' Motion for Clarification of Interest is GRANTED IN PART AND DENIED IN PART as set forth above. The Receiver's Motion to Stay is GRANTED.