AUGUSTINE v. ADAMS, (D.Kan. 2000)

G. T. VANBEBBER, District Judge

The case is before the court on defendants James Adams and Adams, Brown, Beran Ball, P.A.'s motion (Doc. 43) for sanctions against plaintiff and/or her attorney. The case is also before the court on plaintiffs motion (Doc. 44) to reconsider this court's order granting defendants John Bird, Robert Glassman, and Glassman, Bird Braun's motion for sanctions against plaintiffs attorney. For the reasons set forth below, both motions are denied.

Rule 11 sets forth mandatory requirements that a moving party must comply with before a court is permitted to order sanctions.See Fed.R.Civ.P. 11(c)(1)(A); see also Aerotech, Inc. v. Estes, 110 F.3d 1523, 1528-29 (10th Cir. 1997). Accordingly, the moving party must submit the motion for sanctions separate and apart from any other motion or request, and specifically describe the conduct that allegedly violates the rule. See Fed.R.Civ.P. 11(c)(1)(A). The moving party must serve the motion on the opposing party. See id. If, after twenty-one days, the opposing party does not withdraw the challenged paper, claim, defense, contention, allegation, or denial, the moving party may file its motion for sanctions with the court. See id. "These provisions are intended to provide a type of `safe harbor' against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation." Advisory Committee Notes to 1993 Amendments, Fed.R.Civ.P. 11.

"Given the `safe harbor' provisions . . ., a party cannot delay serving its Rule 11 motion until conclusion of the case (or judicial rejection of the offending contention)." Advisory Committee Notes to 1993 Amendments, Fed.R.Civ.P. 11. Thus, a Rule 11 motion filed subsequent to summary judgment is untimely and in violation of the rule's twenty-one day "safe harbor" provision. See Hutchinson v. Pfeil, Nos. 98-5245 and 99-5019, slip op. 8 (10th Cir. April 4, 2000).

Defendants James Adams and Adams, Brown, Beran Ball filed their motion for sanctions against plaintiff and/or her attorney on February 16, 2000. The court granted summary judgment in favor of those same defendants on February 4, 2000. Defendants motion for sanctions, therefore, is filed in violation of the twenty-one day "safe harbor" provision and, for this reason, is denied.

Defendants John Bird, Robert Glassman, and Glassman, Bird Braun filed a motion seeking sanctions against plaintiff and/or her attorney pursuant to Fed.R.Civ.P. 11. The court granted that motion with respect to plaintiffs attorney in an order dated February 4, 2000. Plaintiff requests for the court to reconsider that ruling.

The Federal Rules of Civil Procedure do not provide for motions to reconsider; D. Kan. Rule 7.3, however, provides:

A party may file a motion asking a judge or magistrate judge to reconsider an order or decision made by that judge or magistrate judge. . . . A motion to reconsider [a non-dispositive order] shall be 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.

The court has discretion whether to grant or deny a motion to reconsider. See Johnson v. DayCo Products, Inc., 178 F.R.D. 571, 573 (D. Kan. 1998) (citing Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988)). A motion to reconsider is appropriate if the court has "obviously misapprehended a party's position, the facts, or applicable law, or if the party produces new evidence that could not have been obtained through the exercise of due diligence." Id. (citing Voelkel v. General Motors Corp., 846 F. Supp. 1482 (D. Kan 1994)). A motion to reconsider should not be used as a second opportunity for the losing party to make its strongest case, rehash arguments, or dress up arguments that previously failed. See Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 67 F. Supp.2d 1242, 1248 (D. Kan. 1999) (citing Voelkel, 846 F. Supp. at 1483). A motion to reconsider is not appropriate if the movant only wants the court to revisit issues already addressed or hear new arguments. See id. (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)).

In the motion to reconsider presently before the court, plaintiff expects the court to hear a new argument as to why the motion for sanctions should not be granted. Specifically, plaintiff argues that the motion for sanctions should not be granted because defendants did not follow the mandatory procedural requirements as set forth in Rule 11(c)(1)(A). In her response brief to the motion for sanctions, plaintiff did not raise this argument; instead, she merely argued that the conduct at issue did not warrant sanctions. As previously stated, motions to reconsider are not appropriate if the movant only wants the court to hear new arguments. See Aetna U.S. Healthcare, 67 F. Supp. 2d at 1248 (citing Van Skiver, 952 F.2d at 1243). Plaintiff offers no explanation as to why this newly proffered argument was not included in her response brief to the motion for sanctions. The court determines that plaintiffs failure to raise the argument in her response brief precludes her from obtaining the relief now sought in her motion to reconsider. Plaintiffs motion is denied.

IT IS, THEREFORE, BY THE COURT ORDERED that defendants James Adams and Adams, Brown, Beran Ball, P.A.'s motion (Doc. 43) for sanctions is denied.

IT IS FURTHER ORDERED that plaintiffs motion (Doc. 44) to reconsider is denied.

Copies of this order shall be mailed to counsel of record for the parties.

IT IS SO ORDERED.

Dated at Kansas City, Kansas, this 19th day of April, 2000.

____________________________ G. T. VanBebber United States District Judge