So, you have received a decision from the court and you are disappointed. The judge did not see the issue your way and denied your motion. You believe that the court missed something that should have resulted in your favor. Do you move to reconsider?

A motion for reconsideration is not specifically provided for under the Rules of Civil Procedure, but it is a common tool used by litigants. For those decisions that are interlocutory (meaning they do not end the case), Rule 54(b) provides one avenue for the court to reconsider a prior order. The rule states in part, “any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” N.C. R. Civ. P. 54(b). This is the mechanism used by many practitioners to ask the court to reconsider a prior order.

While the rule provides that the court may revisit a prior ruling, a motion for reconsideration is not to be used as a second bite at the apple and is rarely granted. See, e.g., Bohn v. Black, 2018 WL 2271150, at *3 (N.C. Super. Ct. May 16, 2018) (denying motion for reconsideration); W4 Farms, Inc. v. Tyson Farms, Inc., 2017 WL 4751155, at *2, 4 (N.C. Super. Ct. Oct. 19, 2017) (denying motion for reconsideration).

The court’s discretion to reconsider is not unfettered. Courts look to see:

  • whether there has been an intervening change in controlling law;
  • whether there are newly discovered facts;
  • whether the court made a clear error of law;
  • whether there is a need to prevent injustice; or
  • whether the party that lost would be prejudiced if the court denies the motion to reconsider.

Litigants should be wary of asking the court to reconsider a prior order if these grounds are not clearly present. The court must consider competing interests of judicial economy and law of the case doctrine, which require the court to move forward with litigation so that there is a prompt and efficient resolution. Allowing parties to challenge issues that were already decided defeats these goals and wastes client, attorney, and judicial resources.

The Fourth Circuit published an opinion in U.S. Tobacco Cooperative, Inc. v. Big South Wholesale of Virginia, LLC, No. 17-2070, __ F.3d __, 2018 WL 3677555 (Aug. 3, 2018), http://www.ca4.uscourts.gov/opinions/172070.P.pdf, where the court reversed a district court judge who reconsidered an order by another district court judge. After the original judge retired, one of the parties moved to reconsider the prior judge’s order based on “substantially different evidence” discovered during litigation and “clear error causing manifest injustice.” Id. at *14. The new judge reevaluated the evidence presented, “took a view of the evidence that differed from” the original judge’s, and granted the motion for reconsideration. Id. at *12.

The Fourth Circuit advised, “the discretion afforded by Rule 54(b) is not limitless, and we have cabined revision pursuant to Rule 54(b) by treating interlocutory rulings as law of the case. This is because, while Rule 54(b) gives a district court discretion to revisit earlier rulings in the same case, such discretion is subject to the caveat that where litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Id. at *14 (internal quotation marks and citations omitted).

The Fourth Circuit reversed finding that the new judge abused its discretion in reconsidering the prior judge’s order. The Fourth Circuit did not find any new evidence justifying reconsideration nor clear error. Thus the Court vacated the district court’s order granting reconsideration under Rule 54(b) and remanded with instructions to reinstate the prior judge’s order.

Rule 54(b) does not allow the parties to simply relitigate the same grounds brought in a prior motion. To be successful, litigants should narrowly tailor their motions to fit within the five grounds for reconsideration. That way, the court will be able to revisit an issue previously decided, and you may get the decision you wanted without having to wait for an appeal.

 

Phoebe Coddington

Phoebe has litigated hundreds of cases and appeals nationally. Although she handles all types of cases, complex business litigation comprises the majority of her work.

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