United States District Court, D. Arizona
Nutramax Laboratories Incorporated and Nutramax Laboratories Veterinary Sciences Incorporated, Plaintiffs,
FLP LLC, Defendant.
Honorable Susan M. Brnovich United States District Judge
before the court is Nutramax Laboratories Incorporated and
Nutramax Laboratories Veterinary Sciences Incorporated's
("Plaintiffs") Motion to Reconsider Order Awarding
Attorneys' Fees. (Doc. 37).
February 22, 2019, Plaintiffs filed their Complaint. (Doc.
1). Subsequently, on March 6, 2019, Defendant responded with
a letter explaining why it felt the Complaint was without
merit. (Doc. 21-1 at 4-5). On April 3, 2019, the parties
communicated through email regarding the letter and
thereafter had frequent communication about settlement.
(See Doc. 21-1). On May 22, 2019, Plaintiffs emailed
Defendant regarding a request for entry of default, and on
May 24, 2019, Plaintiffs filed an Application for Entry of
Default against Defendant, without confirming that Defendant
received notice. (Doc. 18). Later that day, Defendant emailed
Plaintiffs, requesting they withdraw the application and
stating if they failed to do so that Defendant would request
appropriate relief in a Motion to Set Aside. (Doc. 21-1 at
24). On May 28, 2019, the Clerk's Entry of Default was
filed with the Court. (Doc. 19). Then, on June 1, 2019,
Plaintiffs filed another status report with the Court and did
not advise that default had been entered, but instead
indicated that the parties remained in settlement
6, 2019, Defendant filed a Motion to Vacate Clerk's Entry
of Default and Request for Attorneys' Fees. (Doc. 21). In
support of the request for attorneys' fees, Defendant
provided the case Cox v. Nasche, 149 F.R.D. 190 (D.
Alaska 1993), which described that a finding of bad faith
litigation provides the Court with authority to award
attorneys' fees. (Id. at 14).
20, 2019, Plaintiffs filed a Response to Defendant's
Motion to Vacate and Request for Attorneys' Fees,
asserting Defendants provided no legal or procedural basis
for the fee awards. (Doc. 23 at 1).
27, 2019, Defendant filed a Reply to Plaintiffs' Response
to their Motion to Vacate and Request for Attorneys'
Fees. (Doc. 23). The reply reiterated the arguments made in
the initial motion and addressed Plaintiffs' argument
that “attorney fees cannot be awarded unless
legislation authorized such an award” by citing to 
United States Code Section 1927. Id. at 5.
11, 2019, the Court ordered attorney fees after finding that
Plaintiffs did not act in good faith in seeking entry of
default when representing to the Defendant and the Court that
they were still engaging in settlement discussions, failing
to disclose to the court or adequately notify the Defendant
that they were changing course, and refusing to withdraw the
motion when requested by Defendant. (Doc. 31 at 3).
24, 2019, Plaintiffs filed a Motion to Reconsider Order
Awarding Attorneys' Fees, requesting relief pursuant to
Local Rule of Civil Procedure 7.2(g). (Doc. 37). Plaintiffs
assert that attorneys' fees are not available because (1)
Defendant failed to serve its motion for fees 21 days prior
to its filing in accordance with the safe harbor provision of
Rule 11(c)(2), (2) Section 1927 sanctions require a finding
of subjective bad faith which the Court should not have
found, and (3) Section 1927 fees are not proper here when the
basis for the fee award was not raised by Defendants until
their reply brief. (Id. at 2).
Response, Defendant asserts that failure to comply with the
Rule 11(c)(2) safe harbor provision was not eligible for
reconsideration per Local Rule of Civil Procedure 7.2(g), as
it was not brought to the Court's attention in
Plaintiffs' Response to Defendant's Motion to Vacate
and Request for Attorneys' Fees prior to the Court's
order granting the motion. (Doc. 44 at 3-4). Defendant also
asserts that if the issue of complying with the safe harbor
provision was eligible for reconsideration, that Defendant
complied with its requirements. (Id. at 4-5).
Lastly, Defendant asserts Plaintiffs' Motion to
Reconsider failed to comply with Local Rule of Civil
Procedure 7.2(g) in that it consisted of arguments that were
repeated in Plaintiffs' Response to Defendant's
Motion to Vacate Default. (Id. at 8).
Motions for Reconsideration
for reconsideration are disfavored and should be granted only
in rare circumstances. Defs. of Wildlife v. Browner,
909 F.Supp. 1342, 1351 (D. Ariz. 1995). A motion for
reconsideration ordinarily will be denied “absent a
showing of manifest error or a showing of new facts or legal
authority that could not have been brought to its attention
earlier with reasonable diligence.” L.R.Civ 7.2(g)(1).
“Reconsideration is appropriate if the district court
(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Sch. Dist. No. 1J, Multnomah Cty.
v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A
party should not file a motion for reconsideration to ask the
court “to rethink what the court has already thought
through-rightly or wrongly.” Defs. of
Wildlife, 909 F.Supp. at 1351 (citations omitted).
Court Authority to Impose Sanctions in the Form ...