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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND KEVIN POTTER, Plaintiff v. : MARGUERITE POTTER, et al. Defendant : : : : : : : Case No.: MJG-00-63 :

MEMORANDUM AND ORDER

Kevin Potter, acting pro se, filed this action against his parents, seeking damages for personal injury. (Paper No. 1.) Mr. Potter alleges that his parents were negligent in not having a tree, which they knew had been struck by lightning, removed from their property. He claims that while he was on his parents' property

helping them garden, his father negligently tried to remove the sixty-foot tree by himself, which caused the tree to fall, strike and injure Mr. Potter. The Defendant-parents, acting pro se, filed an

answer admitting every allegation in the complaint and stipulating to the $500,000 in damages Mr. Potter is seeking. (Paper No. 3.)

Nationwide Insurance Company ("Nationwide"), the parents' homeowner and automobile policy insurer, filed a motion to intervene

as a defendant in this case, as a claim has been made by the Defendant-parents for the payment of Mr. Potter's claim against them. (Paper No. 11.) That motion was granted. (Paper No. 13.)

Nationwide filed a cross-claim against the Defendant-parents seeking a declaratory judgment on the issues of insurance coverage and the duty to defend and indemnify the parents in this action. 15.) Thereafter, Nationwide served discovery requests on Mr. Potter. On September 27, 2000, Mr. Potter filed a motion for a protective order, which sought to halt all discovery against him, as he alleged that his injuries rendered him incapable of responding. 19.) (Paper No. (Paper No.

The Court denied his motion for a protective order, and ordered

that Mr. Potter's responses to the discovery requested by Nationwide would be complete and unevasive, as is required by Rule 37(a)(3), and cautioned him that a failure to comply with the Order could subject him to sanctions under Rule 37(b)(2), a copy of which was attached to the Order. (Paper No. 42.)

On July 11, 2000, Mr. Potter filed a motion for leave to file an amended complaint, which was granted. (Paper Nos. 17, 23.) Potter then amended the complaint on October 5, 2000. 24.) Mr.

(Paper No.

On January 23, 2001, Nationwide filed a motion to dismiss Mr.

Potter's amended complaint, for failure to provide the discovery that had been ordered by the Court. (Paper No. 63.) In that motion,

Nationwide identified ten specific discovery responses of Mr. Potter's that it viewed as deficient. On March 7, 2001, the (Paper No. 84.)

undersigned issued an Order ruling on this motion. 2

That Order denied the request for dismissal of the amended complaint, but provided specific instructions to Mr. Potter regarding what information had to be provided, within 21 days, and identified the sanctions that were recommended for imposition by Judge Garbis, in the event that Mr. Potter again failed to comply with the Court's Order. These sanctions included prohibitions against Mr. Potter

introducing at trial evidence to support his liability and damages claims against Nationwide, pursuant to Rule 37(b)(2)(B). Nationwide now has filed a motion for reconsideration of the Court's March 7, 2001 Order. (Paper No. 85.) Nationwide does not

identify any of the grounds under which a motion for reconsideration customarily may be granted.1 Instead, it asks the Court to consider

additional exceptions it has to the sufficiency of Mr. Potter's discovery responses. Nationwide candidly acknowledges that it was

aware of these alleged deficiencies when it filed its motion to dismiss, but in the interest of "judicial economy" only asked the Court to address the ten that it raised in the motion. Nationwide

now asks the Court to reconsider its earlier ruling not to dismiss

A motion for reconsideration is appropriate to "correct manifest errors of law or fact or to present newly discovered evidence," See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d. Cir. 1986) (quoting Keene Corp. v. International Fidelity Insur. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1983), or where there has been an intervening change in controlling law. See Shields v. Shelter, 120 F.R.D. 123, 126 ( D. Co. 1988); Above the Belt, Inc., v. Bohananon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). 3

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the amended complaint, or in the alternative, to consider an additional eighteen allegedly deficient discovery responses it received from Mr. Potter, of which it was aware when the motion to dismiss was filed, but did not raise. this motion must be DENIED. For the following reasons,

DISCUSSION The Federal Rules of Civil Procedure do not provide for a motion for reconsideration, denominated as such. However, Rule 7

defines a motion as any request, written or oral, to the court that requests the issuance of an order. Therefore, Rule 7 is broad enough

to permit a party to seek virtually any relief, including a request that it reconsider an order that it previously issued. rules of this Court permit the filing of a motion for reconsideration, within ten days of the issuance of the order that is the subject of the motion. L.R. 105.10. The rule, however, contains The local

no standard for its application, nor has this Court, or the Fourth Circuit, identified such a standard. guidance is instructive. Other courts have, and their

In the widely cited case of Above the Belt,

Inc. v. Bohananon Roofing, Inc., 99 F.R.D. 99 (E.D. Va. 1983), the court noted that there are "circumstances when a motion to reconsider may perform a valuable function", but added that it was improper to use such a motion to "ask the Court to rethink what the Court had 4

already thought through--rightly or wrongly." concluded:

Id. at 101.

The Court

The motion to reconsider would be appropriate where, for example, the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare. Id. (emphasis added). are in accord. Other courts that have considered this issue

Kern-Tulare Water Dist. v. City of Bakersfield, 634

F. Supp. 656, 665 (E.D. Ca. 1986), rev'd on other grounds, 828 F.2d 514 (9th Cir. 1987) ("Courts have distilled various grounds for reconsideration of prior rulings into three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or prevent manifest injustice."); Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241 (D. Del. 1990); Shields v. Shelter, 120 F.R.D. 123, 125-6 (D. Colo. 1988) (recognizing the three customary reasons for granting a motion for reconsideration, providing they are of a "strongly convincing" nature, and observing that a motion for reconsideration "is not a license for a losing party's attorney to get a second bite at the apple'); United States v. Smithfield Foods, Inc., 969 F. Supp. 975,

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977 (E.D. Va. 1997).

The learned commentators agree. 18 CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE

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