Opinion
Civil Action No. 04-2317-GTV.
November 16, 2004
MEMORANDUM AND ORDER
This case comes before the court on Defendant John K. Croisant's motion for reconsideration (Doc. 16). Defendant requests relief from the court's memorandum and order entered on October 26, 2004 (Doc. 15), in which it granted Plaintiff Thrivent Financial for Lutheran's ("Thrivent Financial") motion to strike Defendant's counterclaims based on the principles of the first-to-file rule. For the following reasons, the court grants Defendant's motion for reconsideration and orders that this case be transferred to Judge Robinson so that she may consider consolidating it with John Croisant v. Thrivent Investment Management, Inc., Case No. 04-4023, currently pending before her.
I. STANDARD OF REVIEW
The decision whether to grant or deny a motion for reconsideration is committed to the court's discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988). "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995));see D. Kan. Rule 7.3. "A motion to reconsider is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994) (citation omitted). "Such motions are therefore not appropriate if the movant intends only that the court hear new arguments or supporting facts." Sac Fox Nation of Mo. v. LaFaver, 993 F. Supp. 1374, 1376 (D. Kan. 1998) (citation omitted).
II. DISCUSSION
A summary of the relevant facts in this case are set forth in the court's October 26, 2004, memorandum and order, and those readers interested in them should refer to that order.
Defendant maintains that the court's order striking his counterclaims based upon the first-to-file rule's principles was clear error and will cause manifest injustice. He argues that the court improperly extended the rule to justify striking his counterclaims because Thrivent Investment Management, Inc. ("Thrivent Investment"), a wholly owned subsidiary of Plaintiff, is a separate corporate entity and thus is subject to separate liability. In addition, Defendant contends that the counterclaims are compulsory and therefore authorized by governing law. Both of these arguments were previously rejected by the court in its October 26th memorandum and order, and the court is no more persuaded this time around.
Defendant, however, raises a new argument for the first time in his motion for reconsideration. Defendant suggests that instead of striking his counterclaims against Plaintiff, "the Court could have and should have, sua sponte, consolidated this action" with the action he filed against Thrivent Investment before Judge Robinson. He further maintains that the same considerations this court used in striking his counterclaims — promoting judicial efficiency and avoiding inconsistent judgments — also favor consolidating this action with the one before Judge Robinson. Plaintiff correctly points out that Defendant did not raise this argument in response to the motion to strike and believes that consolidation would not be appropriate because this is a simple interpleader action, while the case before Judge Robinson is an action for damages.
Although it is not the court's practice to consider new arguments on a motion for reconsideration, the court believes that if Defendant had requested transfer for consideration of consolidation previously, the court would have ordered such a course of action. The court now takes this opportunity to do so.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant John K. Croisant's motion for reconsideration (Doc. 16) is granted. Defendant's counterclaims against Plaintiff are reinstated.
IT IS FURTHER ORDERED that this action be transferred to Judge Julie Robinson.
Copies of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.