United States District Court, E.D. Wisconsin
ORDER DENYING GOVERNMENT'S MOTIONS FOR
RECONSIDERATION (DKT. NOS. 83, 87)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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,
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.
Standard for Motions to Reconsider
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
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.
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.
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.
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).
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.
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).
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)).
The Parties' Arguments
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.
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 ...