30 Order denying reconsideration 21-19

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					Case 0:12-cv-60817-RSR Document 30 Entered on FLSD Docket 08/08/2012 Page 1 of 4



                              UNITED STATES DISTRICT COURT
                              SOUTHERN DISTRICT OF FLORIDA

                       CASE NO. 12-60817-CIV-ROSENBAUM/SELTZER

  GEORGE R. SIMPSON,

         Plaintiff,

  v.

  JAMES RANDI, et al.,

        Defendants.
  ______________________________________/

  ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF COURT’S
     ORDER (DE 21) DENYING PLAINTIFF’S MOTION FOR DEFAULT (DE 19)

         This matter is before the Court on Plaintiff’s Motion for Reconsideration of Court’s Order

  (DE 21) Denying Plaintiff’s Motion for Default (DE 19) [D.E. 25]. The Court has reviewed

  Plaintiff’s Motion and all other relevant materials in the case file. For the reasons that follow, the

  Court DENIES Plaintiff’s Motion for Reconsideration.

                                            I. Background

         On July 2, 2012, Plaintiff filed a motion [D.E. 19] in this Court alleging that “Defendants

  provided fraudulent proof of service” on two motions [D.E. 13 and D.E. 14] and requesting that this

  Court enter a default judgment against Defendants. Plaintiff supported his motion with a copy of an

  email exchange between himself and Defendants’ counsel regarding Plaintiff’s non-receipt of service

  of Defendants’ motions. D.E. 19 at 4. On July 6, 2012, Defendants filed a Response [D.E. 20] to

  Plaintiff’s motion denying Plaintiff’s allegations entirely and affirming that Defendants had effected

  service to Plaintiff’s post office box. D.E 20 at 1-2. Defendants also stated that upon learning via

  email that Plaintiff had not received certain documents, Defendants again mailed those documents
Case 0:12-cv-60817-RSR Document 30 Entered on FLSD Docket 08/08/2012 Page 2 of 4



  to Plaintiff’s post office box. D.E. 20 at 2. On July 9, 2012, the Honorable Kathleen Williams denied

  Plaintiff’s motion for default judgment. [D.E. 21].

         Also on July 9, 2012, after the motion had been denied, Plaintiff filed a Reply [D.E. 22] to

  Defendants’ Response. Plaintiff’s Reply reiterated the arguments made in Plaintiff’s original motion

  and drew particular attention to the fact that Plaintiff felt Defendants’ Response did not address

  Plaintiff’s arguments with specificity, especially with regard to the email exchange. D.E. 22 at 2.

  Plaintiff also admitted receiving mailed copies of the relevant documents on July 6, 2012, and

  attached a photocopy of the envelope used by Defendants’ counsel to send them, bearing a postmark

  of July 3, 2012. D.E. 22 at 3, 7.

         On July 11, 2012, Plaintiff filed his Motion for Reconsideration [D.E. 25] of the Order

  denying his Motion for Default Judgment. In the reconsideration motion, Plaintiff notes that his

  previous motion was denied before the Court received his Reply brief on July 9, 2012. D.E. 25 at

  1. On August 3, 2012, Plaintiff filed a nearly identical motion [D.E. 29] “renewing” his Motion for

  Reconsideration.

                                             II. Discussion

         “[R]econsideration of a previous order is an extraordinary remedy to be employed

  sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla.

  2002) (citing Mannings v. Sch. Bd. of Hillsborough County, 149 F.R.D. 235, 235 (M.D. Fla.

  1993)). “The ‘purpose of a motion for reconsideration is to correct manifest errors of law or fact

  or to present newly discovered evidence.’” Id. at 1369 (S.D. Fla. 2002) (quoting Z.K. Marine Inc.

  v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992)). “A ‘motion for reconsideration

  should not be used as a vehicle to . . . reiterate arguments previously made.’” Id.

         The party moving for reconsideration “must set forth facts or law of a strongly convincing


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Case 0:12-cv-60817-RSR Document 30 Entered on FLSD Docket 08/08/2012 Page 3 of 4



  nature to induce the court to reverse its prior decision.” Id. (citing Sussman v. Salem Saxon &

  Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla 1994)). Only three major grounds generally justify

  reconsideration: “(1) an intervening change in the controlling law; (2) the availability of new

  evidence; and (3) the need to correct clear error or prevent manifest injustice.” Id. (citing Offices

  Togolais Des Phosphates v. Mulberry Phosphates, Inc., 62 F. Supp. 2d 1316, 1331 (M.D. Fla.

  1999); Sussman, 153 F.R.D. at 694).

         Here, Plaintiff fails to meet the exceedingly high standard necessary to prevail on a

  reconsideration motion. Not only must Plaintiff set forth either a change in controlling law,

  availability of new evidence, or a need to correct clear error, Burger King, 181 F. Supp. 2d at

  1369, but must do so with “strongly convincing” facts or law. Id. Plaintiff apparently rests his

  motion on the fact that his Reply brief was not considered prior to the Court’s denial of his

  original motion. See D.E. 25 at 1. However, as noted above, the only new matters raised in

  Plaintiff’s Reply brief are the concern with the lack of specificity in Defendants’ Response and

  the attached photocopy of the envelope. D.E. 22 at 2, 7. Neither of these facts is so convincingly

  strong as to require reconsideration of the original motion. In fact, the photocopy of the envelope

  undermines Plaintiff’s original argument insomuch as it evidences that Plaintiff has indeed been

  served with the documents he originally claimed Defendants had failed to serve.

         Even if Plaintiff were to meet the standard for reconsideration, he would not prevail on

  the merits. Default judgments “are seen with disfavor because of the strong policy of determining

  cases on their merits.” Fla. Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir.1993) (citing

  Gulf Coast Fans, Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499, 1510 (11th Cir. 1984)).

  Even taking as true Plaintiff’s original allegation that Defendants failed to serve him properly via

  mail, see D.E. 19 at 2, Plaintiff’s own Reply brief demonstrates that Defendants’ counsel cured


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  the service problem by mailing the documents on July 3, 2012, a mere three days after being

  informed by Plaintiff that he had not received service, see D.E. 22 at 3, 7. In light of the law’s

  preference to resolve cases on their merits, a default judgment would not be appropriate after the

  alleged service problems have been remedied.

                                            III. Conclusion

         For the above reasons, Plaintiff’s Motion for Reconsideration of Court’s Order (DE 21)

  Denying Plaintiff’s Motion for Default (DE 19) [D.E 25] is DENIED. Similarly, Plaintiff’s

  Renewed Motion for Reconsideration [D.E. 29] is DENIED.


         DONE and ORDERED at Fort Lauderdale, Florida, this 7th day of August 2012.


                                                 __________________________________
                                                 ROBIN S. ROSENBAUM
                                                 United States Magistrate Judge

  cc:    Honorable Barry S. Seltzer
         Chief United States Magistrate Judge

         Counsel of record

         George R. Simpson, pro se
         P.O. Box 775
         Hampton Bays, NY 11946
         Via U.S. Mail




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