United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
A. KIMBALL United States District Judge
matter is before the court on Counterclaim Defendants'
Second Motion for Reconsideration of Rulings in Memorandum
Decision and Order Dated September 28, 2016 [Docket No. 345].
The motion is fully briefed, and the court concludes that
oral argument would not significantly aid the court in
determination of the motion. Accordingly, the court issues
the following Memorandum Decision and Order based on the
memoranda submitted by the parties and the facts and law
relevant to the motion.
within the court's discretion to reconsider a previous
order. Anderson v. Deer & Co., 852 F.2d 1244,
1246 (10th Cir. 1988). Rule 54(b) provides that
“any order or other form of decision, however
designated, which adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or
parties, and the 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.” Fed.R.Civ.P. 54(b). In Major v.
Benton, 647 F.2d 110, 112 (10th Cir. 1981),
the Tenth Circuit explained:
When a court enunciates a rule of law in the course of a
given case, the law of the case doctrine generally requires
the court to adhere to the rule throughout the proceedings.
1B Moore's Federal Practice P 0.404(1) at 402-03. The
rule is one of expedition, designed to bring about a quick
resolution of disputes by preventing continued reargument of
issues already decided. Roberts v. Cooper, 61 U.S.
(20 How.) 467, 481, 15 L.Ed. 969 (1858); White v.
Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967). Unlike res
judicata, the rule is not an "inexorable command, "
but is to be applied with good sense. Murtha, 377
F.2d at 431-32 . . . . When a lower court is convinced that
an interlocutory ruling it has made is substantially
erroneous, the only sensible thing to do is to set itself
right to avoid subsequent reversal. Lindsey v.
Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.),
cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62
L.Ed.2d 75 (1979) . . . . Courts have generally permitted a
modification of the law of the case when substantially
different, new evidence has been introduced, subsequent,
contradictory controlling authority exists, or the original
order is clearly erroneous. See Fuhrman v. United States
Steel Corp., 479 F.2d 489, 494 (6th Cir.), cert.
denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110
(1973); Murtha, 377 F.2d at 431-32.
Rule 54(b) allows a court to revisit any order that rules on
less than all of the claims in a case, a motion to reconsider
is not appropriate when it merely restates the party's
position taken in the initial motion. A motion for
reconsideration is an “inappropriate vehicle to reargue
an issue previously addressed by the court when the motion
merely advances new arguments, or supporting facts which were
available at the time of the original motion. Absent
extraordinary circumstances, . . . the basis for the second
motion must not have been available at the time the first
motion was filed.” Servants of the Paracletes v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A
motion to reconsider must be made upon grounds other than a
mere disagreement with the court's decision and must do
more than rehash a party's former arguments that were
rejected by the court.
their motion, Counterclaim Defendants contend that the court
erroneously granted summary judgment to AA on its
misappropriation of trade secrets claim. Counterclaim
Defendants assert that (1) there is a genuine issue of
material fact as to whether the AA data was disclosed or
acquired and that (2) the alleged use of the AA data is not
use within the meaning of the UTSA as a matter of law. These
arguments were clearly available to Counterclaim Defendants
during the summary judgment briefing. Counterclaim Defendants
do not claim that there has been a change in the law or that
new evidence has come to light. New counsel engaged in trial
preparation is not the kind of exceptional circumstances
contemplated by the standard for a motion for
reconsideration. U.S. v. Roberson, 439 F.3d 934, 940
(8th Cir. 2006) (securing new counsel gives no
right to relitigate arguments that had been “duly
considered and denied”); Houck v. City of Prairie
Village, 1996 WL 560261, at *2 (D. Kan. Sept. 24, 1996)
(“Entry of appearance by additional counsel in the case
or lack of knowledge of outstanding discovery issues be new
counsel does not warrant reconsideration of previously
entered orders.”). “Indeed, the interests of
justice are disserved by permitting losing parties to present
a series of revolving arguments through successive
pleadings.” England v. Cox, 2012 WL 3765109,
at *1 (D. Kan. Aug. 30, 2012).
Defendants merely disagree with the court's prior
analysis. The court held that ARS had improperly disclosed
the AA data to Kinum, an industry competitor, and that Kinum
improperly acquired the AA data when ARS sold the ARS
Software to it and disclosed the AA data to Sajax when Kinum
sold the ARS Software to Sajax. ARS did not have any
ownership interest in the AA data and the License Agreement
between ARS and AA did not provide ARS with any such
ownership interest. ARS knew that the AA data was housed in
the ARS Software when it sold the ARS Software to Kinum and,
therefore, transferred the electronic custody of the AA data,
along with the power and ability to control access to that
data, to Kinum, without AA's authorization. Kinum used
the AA data in the operation of the ARS Software and then
disclosed the AA data to Sajax without AA's
authorization. The evidence presented on summary judgment
established that AA had taken steps to keep the AA data
confidential. AA contracted with ARS for the exclusive use of
the ARS Software and for a right of first refusal to purchase
the ARS Software. ARS then sold the ARS Software to Kinum
without notifying AA. The evidence shows that ARS, then
Kinum, and then Sajax held the control and possession of the
ARS Software and AA's data housed within it. Their agent
controlled the access to and the electronic custody of the AA
data. AA presented evidence on summary judgment that it was
damaged because of its inability to migrate its own data
based and regain control of it.
court already determined that based on the evidence before
the court on summary judgment, that Kinum used the AA data
for commercial use in order to get the monthly payments under
the License Agreement. On a daily basis, Kinum would access
and work with AA's data contained in the ARS Software and
secretly receive payments for this use of AA's data.
Kinum then sold the ARS Software and the AA data to Sajax.
There was no evidence presented at summary judgment to rebut
AA's position that ARS and Kinum used the AA data for
gain, and Counterclaim Defendants have not presented any
newly obtained evidence on this issue for purposes of their
present motion. Counterclaim Defendants have not convinced
the court that its prior ruling should be revisited or was
considering each of Counterclaim Defendants' arguments,
the court concludes that there is no basis for reconsidering
or altering its prior ruling. Accordingly, Counterclaim
Defendants' Second Motion for Reconsideration of Rulings