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United States v. Lewis

United States District Court, E.D. Wisconsin

July 11, 2019




         The government asks this court to reconsider its May 15, 2019 order remanding the case to Magistrate Judge Nancy Joseph to hold a Franks hearing. Dkt. Nos. 83, 87.[1] The defendants opposed the motion. Dkt. No. 88. The government did not file a reply within the five days provided by Criminal Local Rule 12(b)(3); it filed its reply brief on June 14, 2019-within seven days of the defendants' response. The court has considered all briefs, including the government's reply brief, and denies the motion.

         I. Standard for Motions to Reconsider

         The government does not cite a rule under which the court should consider its motion. Perhaps this is because “[n]one of the Rules of Criminal Procedure authorizes a generic motion to reconsider; the criminal rules lack a counterpart to the motions authorized by Fed.R.Civ.P. 50(b), 52(b), or 59[.]” United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010). Nonetheless, motions to reconsider “are ordinary elements of federal practice that exist in criminal prosecutions despite their omission from the Rules of Criminal Procedure[;]” “motions to reconsider in criminal prosecutions are proper and will be treated just like motions in civil suits.” Id. (citing United States v. Healy, 376 U.S. 75, 84 (1964)).

         Like the criminal rules, “the Federal Rules of Civil Procedure do not expressly recognize a ‘motion to reconsider.'” United States v. Roth, 2010 WL 1541343 at *2 (E.D. Wis., April 10, 2010). There are several rules and standards that allow a court to reconsider a prior order or judgment; which of those rules or standards applies depends on the stage of the case, and the finality of the order or judgment.

         Federal Rule of Civil Procedure 54(b) allows a court to revise an “order or other decision . . . that adjudicates fewer than all the . . . rights and liabilities of fewer than all the parties” but “does not end the action as to any of the claims or parties.” Rule 59(e) allows a party to ask a court to alter or amend a judgment. Under Rule 60(b), a party may ask a court for relief from a “final judgment, order, or proceeding” under six specific circumstances. Finally, although the “law of the case” doctrine holds that “a court generally should not reopen issues decided in earlier stages of the same litigation, ” United States v. Harris, 531 F.3d 507, 513 (7th Cir. 2008) (citing Agostini v. Felton, 521 U.S. 203, 206 (1997)), the doctrine authorizes reconsideration of a previous ruling in the same litigation under certain circumstances.

         Rule 59(e) allows a party to file a motion asking the court to alter or amend a judgment if the party files that motion “no later than 28 days after the entry of the judgment.” Because this case has not proceeded beyond the pretrial motion stage, there is no “judgment” for this court to alter or amend. The Rule 59(e) standard does not apply.

         Rule 60(b) allows a party to seek relief from an “order” for any of six enumerated reasons, including mistake, inadvertence, newly-discovered evidence, fraud, or any other reason that justifies relief. Fed.R.Civ.P. 60(b). Rule 60(b), however, “is, ‘by its terms[, ] limited to “final” judgments or orders' and is ‘inapplicable to interlocutory orders.'” Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 559 (7th Cir. 2016) (quoting Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006)) (additional citations omitted). See also, Malone v. Securitas Sec. Servs. USA, Inc., 669 Fed.Appx. 788, 790 (7th Cir. 2016) (collecting cases in support of the proposition that a party may not use Rule 60(b) to request reconsideration of an order issued at any time prior to final judgment).

         The court's May 15, 2019 order remanded the case to Judge Joseph for the purposes of holding a Franks hearing. It did not resolve the case. It was an interlocutory order, so the Rule 60(b) standard does not apply.

         In Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012), the Seventh Circuit explained that Rule 54(b) allows a court to review non-final orders “at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” The court will consider the plaintiffs' motion as a motion to reconsider a non-final order under the Rule 54(b) standard. In reconsidering a non-final order under Rule 54(b), several fellow district courts have concluded that the standard is the same as the standard courts apply in considering a motion to alter or amend a judgment under Rule 59(e). See, e.g., Saccameno v. Ocwen Loan Servicing, LLC, No. 15-c-1164, 2018 WL 1240347 at *2 (N.D. Ill. Mar. 9, 2018); Katz-Crank v. Haskett, No. 13-cv-00159, 2014 WL 3507298 at *2 (S.D. Ind. July 14, 2014) (citation omitted); Morningware, Inc. v. Hearthware Home Products, Inc., No. 09 c 4348, 2011 WL 1376920 at *2 (N.D. Ill. April 12, 2011); Bilek v. American Home Mortg. Servicing, No. 07 c 4147, 2010 WL 3306912 at *1 (N.D. Ill. Aug. 19, 2010); Woods v. Resnick, 725 F.Supp.2d 809, 827-28 (W.D. Wis. 2010).

         Motions to reconsider “are ‘viewed with disfavor,' and they are granted ‘only in the rarest of circumstances and where there is a compelling reason.'” Saccameno, 2018 WL 124037 at *2 (quoting United States v. Givens, No. 12 CR 421-1, 2016 WL 6892868, at *2 (N.D. Ill. Nov. 23, 2016)). Motions to reconsider under Rule 54(b) “serve a limited function; to correct manifest errors of law or fact or to present newly discovered evidence.” Id. (quoting Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008)). See also, Katz-Crank, 2014 WL 3507298 at *2. “A ‘manifest error' is not demonstrated by the disappointment of the losing party;” it “is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.'” Bilek, 2010 WL 3306912 at *1 (quoting Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)). “Newly discovered evidence” is evidence that was “not available at the time of briefing.” Katz-Crank, 2014 WL 3507298 at *2 (citation omitted). “[A] motion to reconsider is not an occasion to make new arguments.” Id. (citing In re Prince, 85 F.3d 314, 324 (7th Cir. 1996)). “Motions for reconsideration in the district courts are generally disfavored because ‘a re-do of a matter that has already received the court's attention is seldom a productive use of taxpayer resources because it places all other matters on hold.'” Id. (quoting Burton v. McCormick, No. 3:11-CV-026, 2011 WL 1792849, at *1 (N.D. Ind. May 11, 2011)). Such a motion ‘does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to [the decision to be reconsidered].” Woods, 725 F.Supp. at 828 (quoting United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010)).

         II. The Parties' Arguments

         The government asks this court to reconsider its May 15, 2019 decision holding that Judge Joseph clearly erred at the pre-Franks hearing she held on September 6, 2018. Dkt. No. 87 at 1. The government attaches the transcript from the September 6, 2018 hearing-a transcript that had not been available for this court to review at the time it issued its decision. Dkt. No. 87-1.

         The government begins by asserting that until the hearing began, neither of the parties understood the purpose of the status conference or were prepared to address specific evidence. Id. at 2. When the hearing began, Judge Joseph told the parties that she had scheduled the “status conference” because she had had some questions regarding the parties' arguments. Dkt. No. 87 at 4 (citing dkt. no. 87-1 at 4). She asked the parties to address paragraph seven of the search warrant affidavit, then asked the defendants to clarify their arguments. Id. The government asserts that defense counsel answered Judge Joseph by stating that “‘the content of paragraph seven did not occur from his review of discovery.'” Id. (citing dkt. no. 87-1 at 6). The government argues that all it did was respond to that ...

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