United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion for Reconsideration on
Changes in Injunctive Order [Doc. No. 34]. Because Defendant
is pro se, the Court liberally construes her filings, but
will not act as her advocate. James v. Wadas, 724
F.3d 1312, 1315 (10th Cir. 2013). Plaintiff has submitted its
response in opposition [Doc. No. 35]. The matter is fully
briefed and at issue.
January 28, 2016, Plaintiff commenced this action, alleging
Defendant infringed several copyrighted works owned by
Plaintiff. On February 10, 2017, default judgment was entered
against Defendant for failing to answer or otherwise respond
to the suit, and the Court awarded Plaintiff statutory
damages in the amount of $80, 000 and injunctive relief [Doc.
Nos. 13-14]. On October 18, 2017, the Court granted
Plaintiff's Motion to Modify Injunction and enlarged the
scope of injunctive relief to include all thirty-one (31)
copyrighted materials identified in Plaintiff's Complaint
[Doc. No. 32]. On October 24, 2017, Defendant filed the
present motion, citing the discovery of “newly
discovered evidence, ” which Defendant contends
“uncover[s] a third set of [f]raud that is so easy to
prove, it requires one to OPEN the eyes and see it.”
Mot. at 1 (Emphasis in original).
not formally recognized by the Federal Rules of Civil
Procedure, motions for reconsideration are routinely
entertained, in one form or another, by federal courts. Such
motions “must do two things: First, [they] must
demonstrate some reason why the court should reconsider its
prior decision. Second, [they] must set forth facts or law of
a strongly convincing nature to induce the court to reverse
its prior decision.” Shields v. Shetler, 120
F.R.D. 123, 126 (D. Colo. 1988) (citation omitted).
three main grounds that justify reconsideration are (1) an
intervening change in controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Absent extraordinary circumstances, arguments that could have
been raised in the original briefing on the dispute in
question may not be made in a motion for reconsideration.
Id. Stated another way, such motions are “not
a second chance for the losing party to make its strongest
case or to dress up arguments that previously failed.”
Voelkel v. General Motors Corp., 846 F.Supp. 1482,
1483 (D. Kan. 1994) (citation omitted). Accordingly, because
the conditions that justify granting a motion to reconsider
are rarely present, such motions are disfavored. Brumark
Corp. v. Samson Resources Corp., 57 F.3d 941, 944 (10th
Cir. 1995) (“[A] motion for reconsideration is an
extreme remedy to be granted in rare
Court finds Defendant's motion should be denied on two
grounds. First, Defendant's motion seeks to re-litigate
the validity of Plaintiff's copyright registrations,
despite the fact that default judgment has been entered and
the merits of the case have long been confessed. See
Tripodi v. Welch, 810 F.3d 761, 765 (10th Cir. 2016)
(noting that after default is entered, “a defendant
admits to a complaint's well-pleaded facts and forfeits
his or her ability to contest those facts.”) (citation
omitted); United States v. Craighead, 176 Fed.Appx.
922, 924 (10th Cir. 2006) (unpublished) (“The
defendant, by [her] default, admits the plaintiff's
well-pleaded allegations of fact, is concluded on those facts
by the judgment, and is barred from contesting on appeal the
facts thus established.”) (citation omitted). As stated
supra, a motion to reconsider is not an opportunity
for a party to assert claims that could have been raised in
the original briefing.
a motion to reconsider based on newly obtained evidence is
appropriate if the party produces new evidence that could not
have been obtained through the exercise of due diligence.
Cotracom Commodity Trading Co. v. Seaboard Corp.,
193 F.R.D. 696, 700 (D. Kan. 2000). In this regard, Defendant
makes no effort to show that she could not have obtained the
evidence presented in the motion through the exercise of due
diligence. Defendant does not contend she was either unable
to or prohibited from obtaining any of the evidence in
question prior to the entry of default judgment. Service of
process was obtained on August 25, 2016; Plaintiffs Motion
for Default Judgment was filed November 22, 2016; and default
judgment was entered February 10, 2017. Only after default
judgment was issued did Defendant appear and seek dismissal
of the Complaint. See Mot. to Vacate and Dismiss
Complaints [sic] [Doc. No. 15]. Defendant makes no effort to
show why she could not have obtained the documents earlier
and presented them to the Court for consideration.
Accordingly, the Court finds Defendant did not act with due
diligence to obtain the “new evidence” prior to
the filing of her motion and her Motion for Reconsideration
should be, and is hereby, DENIED.