Return to Martin v. Howard, main page.
Howard University attempted to avoid a Contempt holding by asking the Court to reconsider its Order
compelling Howard to produce withheld discovery. Before forwarding the issue to Judge Hogan, who held
Howard University in Contempt of Court, Magistrate Facciola denied Howard's motion, calling its
arguments "nonsensical," as stated below.
DAWN MARTIN, Plaintiff, v. HOWARD UNIVERSITY, et al., Defendant.
Civil Action No. 99-1175 (TFH/JMF)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
204 F. Supp. 2d 1; 2002 U.S. Dist. LEXIS 9717
May 23, 2002, Decided
DISPOSITION: [**1] Defendant Howard University's Motion forReconsideration and Correction of Discovery
Order denied.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff individual sued defendant university and others. The court issued an
order to show cause why the university should not be held in contempt for failing to comply with the court's
order compelling the university to respond to certain discovery. Before the court was the university's motion
to reconsider the order compelling discovery.
OVERVIEW: The university conceded that it had not complied with the court's order compelling further
answers to plaintiff's discovery requests but submitted that it had failed to comply due to its counsel's
involvement in a trial. It also alleged that the court's analysis of the university's discovery responses
contained errors. However, the university only brought up these alleged errors after the May 1, 2001
deadline for providing the responses had passed and after being directed to show cause why it and its
counsel should not be held in contempt. The university's argument that Fed. R. Civ. P. 60(b) justified
reconsideration was erroneous because that rule applied only to setting aside a final judgment. The April
11, 2001 order merely resolved discovery issues. What the university was really indicating to the court was
that it failed to make a specific showing of why its responses were adequate in the first place and then
asked the court to consider, for the first time on a motion for reconsideration, if its responses to plaintiff's
discovery requests were adequate after the court had already ruled. This was not the purpose for a motion
for reconsideration.
OUTCOME: The university's motion to reconsider and correct the court's April 11, 2001 discovery order was
denied.
CORE TERMS: discovery, deadline, held in contempt, reconsider, failure to comply, reconsideration,
responded, supposed, motion to reconsider, style, discovery request, motion to compel, failed to comply,
show cause, apologizes, happened
CORE CONCEPTS - Hide Concepts
Civil Procedure > Injunctions > Contempt
Even a "mistaken" order commands obedience until it is overturned on appeal.
Civil Procedure > Relief From Judgment > Mistake & Excusable Neglect
Fed. R. Civ. P. 60(b) applies only to setting aside a final judgment.
Civil Procedure > Relief From Judgment > Motions to Alter & Amend
A court's inherent authority to consider a motion to reconsider an order does not exist in isolation but has to
be read in consonance with the Federal Rules of Civil Procedure and the court's obligation to conduct
business in an orderly fashion.
Civil Procedure > Relief From Judgment > Motions to Alter & Amend
A motion to reconsider cannot be used to advance arguments not made in the first instance, prior to the
court's ruling.
COUNSEL: For DAWN V. MARTIN, plaintiff: Dawn Valore Martin, Washington, DC.
For HOWARD UNIVERSITY, defendant: James Patrick Schaller, JACKSON & CAMPBELL, P.C., Washington,
DC.
For HOWARD UNIVERSITY, HOWARD UNIVERSITY SCHOOL OF LAW, defendants: Deborah K. St.
Lawrence, HOWARD UNIVERSITY, Washington, DC.
For HOWARD UNIVERSITY, HOWARD UNIVERSITY SCHOOL OF LAW, defendants: Phillip A. Lattimore, III,
HOWARD UNIVERSITY, Office of the General Counsel, Washington, DC.
For ALICE GRESHAM BULLOCK, defendant: Leroy T. Jenkins, Jr., HOWARD UNIVERSITY, Office of Legal
Affairs, Washington DC.
For ALICE GRESHAM BULLOCK, defendant: Frederick Douglas Cooke, Jr., RUBIN, WINSTON, DIERCKS,
HARRIS & COOKE, L.L.P., Washington, DC.
JUDGES: JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE.
OPINIONBY: John M. Facciola
OPINION: [*1] ORDER
Once more into the breach. I wonder if the parties and the court will ever wake up from the nightmare
discovery has become in this case.
Staring a contempt citation in its face for its failure to comply with my April 11, 2001 order, Howard University
[**2] ("Howard") and its counsel ask me to reconsider and correct that order. I hasten to add that in
responding to my order to show cause why they should not be held in [*2] contempt, neither Howard nor
its counsel is arguing that the supposed errors in my April 11, 2001 order vitiate my instruction that they
show cause why they should not be held in contempt. To the contrary, they defended themselves by first
conceding that they failed to comply with that order. Howard stated the following:
The University acknowledges, with concern, that it unintentionally failed to comply with certain provisions of
this Court's April 11 Order. This defendant apologizes to the Court and to plaintiff for this failure.
Defendant Howard University's Response to Order to Show Cause at 1 (filed June 11, 2001).
Howard's counsel, represented at my direction by his own counsel, stated:
Mr. Lattimore apologizes for the failure to comply in all respects with the Court's Order of April 11, 2001,
which required that discovery response be completed within twenty days.
Response of Phillip A. Lattimore, III to Show-Cause Order at 1 (filed June 11, 2001).
These submissions by Howard [**3] and its counsel were therefore devoted to why its counsel's failure
was not contumacious -- namely because it was due to the extenuating circumstance of primary counsel's
involvement in a trial in the Superior Court. Thus, although the motion for reconsideration now before me
was filed the same day as the responses to the order to show cause, neither Howard nor its counsel
asserted that my order of April 11, 2001 was in any way erroneous.
Indeed, my order that they show cause why they should not be held in contempt dealt only with the failure of
Howard to comply with a deadline I set and had nothing to do with whether it had responded to plaintiff's
discovery requests -- the premise of its current motion for reconsideration. In my order, I stated the
following:
As a preliminary matter, I will first resolve the issue of Howard University's failure to comply with this Court's
Order of April 11, 2001. The May 1st discovery deadline set by this Court passed without any indication from
defendant that it could not meet this deadline. Defendant did not take any measures to seek relief from the
May 1st deadline. Rather, the defendant merely allowed the deadline to lapse without any [**4] response
whatsoever. Defendant filed no pleadings in this case until May 18, 2001, when it sought leave to file a late
response to plaintiff's motion for reconsideration.
Defendant's flagrant disregard for this Court's Order is unacceptable. Accordingly, Howard University shall
show cause in writing within ten (10) days of the date of this order why Howard University and its counsel
should not be held in contempt for failure to comply with this Court's order of April 11, 2001, directing
defendant to provide plaintiff with answers to her interrogatories and document requests as compelled by
the Order, and why defendant University should not be precluded from presenting a defense in this case
altogether.
Memorandum Opinion and Order at 4.
Since my show cause order dealt only with the failure of Howard and its counsel to meet the deadline I set,
any alleged mistakes in my April 11, 2001 order are of academic interest. First, even a "mistaken" order
commands obedience until it is overturned on appeal. Maness v. Meyers, 419 U.S. 449, 458, 42 L. Ed. 2d
574, 95 S. Ct. 584 (1975). Second, Howard could have brought my supposed mistakes to my attention after
I [**5] issued the April 11, 2001 order and before the May 1, 2001 deadline had past. Instead, Howard
chose [*3] to ignore the May 1, 2001 deadline and instead moved me to reconsider my April 11, 2001 order
after being directed to show cause why it and its counsel should not be held in contempt. Thus, as Howard
would have it, a party can ignore alleged mistakes in a court order, let deadlines come and go, and then,
only after being ordered to show cause why it should not be held in contempt, inform the court of the court's
supposed errors. It is hard to imagine a process that more trivializes the obligation a litigant has to comply
with a court's orders.
Finally, Howard's complaint is that it had been ordered to provide information that it has already provided.
First, assuming that is true, how has it been harmed? Second, there is no authority that would permit the
filing of this motion for reconsideration. Howard cites Fed. R. Civ. P. 60(b) but forgets that the rule applies
only to setting aside a final judgment. My April 11, 2001 order was no such thing. It merely resolved
discovery issues. Indeed, in this case, to use the word "final" is to tempt fate.
Howard also relies on the court's inherent [**6] authority to consider such a motion. However, one would
have to first posit the existence of such an authority. In practice, such an authority does not exist in isolation
but has to be read in consonance with the Federal Rules of Civil Procedure and the court's obligation to
conduct business in an orderly fashion.
In the case at bar, it must be recalled that in plaintiff's motion to compel, plaintiff specifically identified by
number each discovery request that she claimed Howard had failed to sufficiently answer. In response to
plaintiff's motion to compel, instead of providing a detailed explanation with attachments of how it had
already responded to those discovery requests, Howard merely stated that "the University adequately
responded to all other discovery requests." Opposition to Plaintiff's Motion to Compel and for Sanctions at 7.
That limp generalization was no help at all. As a result, as has happened again and again in this case, my
clerk and I had to go through pleading after pleading and every discovery request and response to find out
what was requested and what was provided. We charted what we found and it was that chart and our
independent analysis of the discovery [**7] that were the basis of conclusions in my April 11, 2002 order.
Thus, Howard never specifically indicated why it believed it had answered the discovery "adequately" as it
put it. The court, by itself, had to ascertain what in fact Howard provided in discovery.
When one reconstructs what really happened, it is clear that Howard, no matter how it styles its motion, is
not asking me to reconsider anything. To "reconsider" means to consider for a second time a matter or
argument that one previously considered. That is not what Howard is requesting. What Howard is really
indicating to the court is that it failed to make a specific showing of why its responses were adequate and
then asked me to consider, for the first time, if its responses to plaintiff's discovery requests were adequate
after I had ruled. To style that request as a "motion to reconsider" is nonsensical. As courts have often
stated, a motion to reconsider cannot be used to advance arguments not made in the first instance, prior to
the court's ruling. Novato Fire Protection Dist. v. United States, 181 F.3d 1135, 1142 n.6 (9th Cir. 1999);
School Dist. No. IJ v. ACands, Inc., 5 F.3d 1255, 1263 (9th Cir. [**8] 1993); Moro v. Shell Oil Co., 91 F3d
872, 876 (7th Cir. 1996); Noon v. Sailor, 2000 U.S. Dist. LEXIS 7501, 2000 WL 684219 * 1 (S.D. Ind. 2000).
It is therefore, hereby,
[*4] ORDERED that the Motion by Howard University for this Court to Reconsider and Correct its April 11,
2001 Discovery Order [ # 113] is DENIED.
SO ORDERED.
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
Dated: 5/23/02
compelling Howard to produce withheld discovery. Before forwarding the issue to Judge Hogan, who held
Howard University in Contempt of Court, Magistrate Facciola denied Howard's motion, calling its
arguments "nonsensical," as stated below.
DAWN MARTIN, Plaintiff, v. HOWARD UNIVERSITY, et al., Defendant.
Civil Action No. 99-1175 (TFH/JMF)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
204 F. Supp. 2d 1; 2002 U.S. Dist. LEXIS 9717
May 23, 2002, Decided
DISPOSITION: [**1] Defendant Howard University's Motion forReconsideration and Correction of Discovery
Order denied.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff individual sued defendant university and others. The court issued an
order to show cause why the university should not be held in contempt for failing to comply with the court's
order compelling the university to respond to certain discovery. Before the court was the university's motion
to reconsider the order compelling discovery.
OVERVIEW: The university conceded that it had not complied with the court's order compelling further
answers to plaintiff's discovery requests but submitted that it had failed to comply due to its counsel's
involvement in a trial. It also alleged that the court's analysis of the university's discovery responses
contained errors. However, the university only brought up these alleged errors after the May 1, 2001
deadline for providing the responses had passed and after being directed to show cause why it and its
counsel should not be held in contempt. The university's argument that Fed. R. Civ. P. 60(b) justified
reconsideration was erroneous because that rule applied only to setting aside a final judgment. The April
11, 2001 order merely resolved discovery issues. What the university was really indicating to the court was
that it failed to make a specific showing of why its responses were adequate in the first place and then
asked the court to consider, for the first time on a motion for reconsideration, if its responses to plaintiff's
discovery requests were adequate after the court had already ruled. This was not the purpose for a motion
for reconsideration.
OUTCOME: The university's motion to reconsider and correct the court's April 11, 2001 discovery order was
denied.
CORE TERMS: discovery, deadline, held in contempt, reconsider, failure to comply, reconsideration,
responded, supposed, motion to reconsider, style, discovery request, motion to compel, failed to comply,
show cause, apologizes, happened
CORE CONCEPTS - Hide Concepts
Civil Procedure > Injunctions > Contempt
Even a "mistaken" order commands obedience until it is overturned on appeal.
Civil Procedure > Relief From Judgment > Mistake & Excusable Neglect
Fed. R. Civ. P. 60(b) applies only to setting aside a final judgment.
Civil Procedure > Relief From Judgment > Motions to Alter & Amend
A court's inherent authority to consider a motion to reconsider an order does not exist in isolation but has to
be read in consonance with the Federal Rules of Civil Procedure and the court's obligation to conduct
business in an orderly fashion.
Civil Procedure > Relief From Judgment > Motions to Alter & Amend
A motion to reconsider cannot be used to advance arguments not made in the first instance, prior to the
court's ruling.
COUNSEL: For DAWN V. MARTIN, plaintiff: Dawn Valore Martin, Washington, DC.
For HOWARD UNIVERSITY, defendant: James Patrick Schaller, JACKSON & CAMPBELL, P.C., Washington,
DC.
For HOWARD UNIVERSITY, HOWARD UNIVERSITY SCHOOL OF LAW, defendants: Deborah K. St.
Lawrence, HOWARD UNIVERSITY, Washington, DC.
For HOWARD UNIVERSITY, HOWARD UNIVERSITY SCHOOL OF LAW, defendants: Phillip A. Lattimore, III,
HOWARD UNIVERSITY, Office of the General Counsel, Washington, DC.
For ALICE GRESHAM BULLOCK, defendant: Leroy T. Jenkins, Jr., HOWARD UNIVERSITY, Office of Legal
Affairs, Washington DC.
For ALICE GRESHAM BULLOCK, defendant: Frederick Douglas Cooke, Jr., RUBIN, WINSTON, DIERCKS,
HARRIS & COOKE, L.L.P., Washington, DC.
JUDGES: JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE.
OPINIONBY: John M. Facciola
OPINION: [*1] ORDER
Once more into the breach. I wonder if the parties and the court will ever wake up from the nightmare
discovery has become in this case.
Staring a contempt citation in its face for its failure to comply with my April 11, 2001 order, Howard University
[**2] ("Howard") and its counsel ask me to reconsider and correct that order. I hasten to add that in
responding to my order to show cause why they should not be held in [*2] contempt, neither Howard nor
its counsel is arguing that the supposed errors in my April 11, 2001 order vitiate my instruction that they
show cause why they should not be held in contempt. To the contrary, they defended themselves by first
conceding that they failed to comply with that order. Howard stated the following:
The University acknowledges, with concern, that it unintentionally failed to comply with certain provisions of
this Court's April 11 Order. This defendant apologizes to the Court and to plaintiff for this failure.
Defendant Howard University's Response to Order to Show Cause at 1 (filed June 11, 2001).
Howard's counsel, represented at my direction by his own counsel, stated:
Mr. Lattimore apologizes for the failure to comply in all respects with the Court's Order of April 11, 2001,
which required that discovery response be completed within twenty days.
Response of Phillip A. Lattimore, III to Show-Cause Order at 1 (filed June 11, 2001).
These submissions by Howard [**3] and its counsel were therefore devoted to why its counsel's failure
was not contumacious -- namely because it was due to the extenuating circumstance of primary counsel's
involvement in a trial in the Superior Court. Thus, although the motion for reconsideration now before me
was filed the same day as the responses to the order to show cause, neither Howard nor its counsel
asserted that my order of April 11, 2001 was in any way erroneous.
Indeed, my order that they show cause why they should not be held in contempt dealt only with the failure of
Howard to comply with a deadline I set and had nothing to do with whether it had responded to plaintiff's
discovery requests -- the premise of its current motion for reconsideration. In my order, I stated the
following:
As a preliminary matter, I will first resolve the issue of Howard University's failure to comply with this Court's
Order of April 11, 2001. The May 1st discovery deadline set by this Court passed without any indication from
defendant that it could not meet this deadline. Defendant did not take any measures to seek relief from the
May 1st deadline. Rather, the defendant merely allowed the deadline to lapse without any [**4] response
whatsoever. Defendant filed no pleadings in this case until May 18, 2001, when it sought leave to file a late
response to plaintiff's motion for reconsideration.
Defendant's flagrant disregard for this Court's Order is unacceptable. Accordingly, Howard University shall
show cause in writing within ten (10) days of the date of this order why Howard University and its counsel
should not be held in contempt for failure to comply with this Court's order of April 11, 2001, directing
defendant to provide plaintiff with answers to her interrogatories and document requests as compelled by
the Order, and why defendant University should not be precluded from presenting a defense in this case
altogether.
Memorandum Opinion and Order at 4.
Since my show cause order dealt only with the failure of Howard and its counsel to meet the deadline I set,
any alleged mistakes in my April 11, 2001 order are of academic interest. First, even a "mistaken" order
commands obedience until it is overturned on appeal. Maness v. Meyers, 419 U.S. 449, 458, 42 L. Ed. 2d
574, 95 S. Ct. 584 (1975). Second, Howard could have brought my supposed mistakes to my attention after
I [**5] issued the April 11, 2001 order and before the May 1, 2001 deadline had past. Instead, Howard
chose [*3] to ignore the May 1, 2001 deadline and instead moved me to reconsider my April 11, 2001 order
after being directed to show cause why it and its counsel should not be held in contempt. Thus, as Howard
would have it, a party can ignore alleged mistakes in a court order, let deadlines come and go, and then,
only after being ordered to show cause why it should not be held in contempt, inform the court of the court's
supposed errors. It is hard to imagine a process that more trivializes the obligation a litigant has to comply
with a court's orders.
Finally, Howard's complaint is that it had been ordered to provide information that it has already provided.
First, assuming that is true, how has it been harmed? Second, there is no authority that would permit the
filing of this motion for reconsideration. Howard cites Fed. R. Civ. P. 60(b) but forgets that the rule applies
only to setting aside a final judgment. My April 11, 2001 order was no such thing. It merely resolved
discovery issues. Indeed, in this case, to use the word "final" is to tempt fate.
Howard also relies on the court's inherent [**6] authority to consider such a motion. However, one would
have to first posit the existence of such an authority. In practice, such an authority does not exist in isolation
but has to be read in consonance with the Federal Rules of Civil Procedure and the court's obligation to
conduct business in an orderly fashion.
In the case at bar, it must be recalled that in plaintiff's motion to compel, plaintiff specifically identified by
number each discovery request that she claimed Howard had failed to sufficiently answer. In response to
plaintiff's motion to compel, instead of providing a detailed explanation with attachments of how it had
already responded to those discovery requests, Howard merely stated that "the University adequately
responded to all other discovery requests." Opposition to Plaintiff's Motion to Compel and for Sanctions at 7.
That limp generalization was no help at all. As a result, as has happened again and again in this case, my
clerk and I had to go through pleading after pleading and every discovery request and response to find out
what was requested and what was provided. We charted what we found and it was that chart and our
independent analysis of the discovery [**7] that were the basis of conclusions in my April 11, 2002 order.
Thus, Howard never specifically indicated why it believed it had answered the discovery "adequately" as it
put it. The court, by itself, had to ascertain what in fact Howard provided in discovery.
When one reconstructs what really happened, it is clear that Howard, no matter how it styles its motion, is
not asking me to reconsider anything. To "reconsider" means to consider for a second time a matter or
argument that one previously considered. That is not what Howard is requesting. What Howard is really
indicating to the court is that it failed to make a specific showing of why its responses were adequate and
then asked me to consider, for the first time, if its responses to plaintiff's discovery requests were adequate
after I had ruled. To style that request as a "motion to reconsider" is nonsensical. As courts have often
stated, a motion to reconsider cannot be used to advance arguments not made in the first instance, prior to
the court's ruling. Novato Fire Protection Dist. v. United States, 181 F.3d 1135, 1142 n.6 (9th Cir. 1999);
School Dist. No. IJ v. ACands, Inc., 5 F.3d 1255, 1263 (9th Cir. [**8] 1993); Moro v. Shell Oil Co., 91 F3d
872, 876 (7th Cir. 1996); Noon v. Sailor, 2000 U.S. Dist. LEXIS 7501, 2000 WL 684219 * 1 (S.D. Ind. 2000).
It is therefore, hereby,
[*4] ORDERED that the Motion by Howard University for this Court to Reconsider and Correct its April 11,
2001 Discovery Order [ # 113] is DENIED.
SO ORDERED.
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
Dated: 5/23/02
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| Law Offices of Dawn V. Martin Martin v. Howard University Order: Howard Cannot Avoid Contempt Finding with "Nonsenical" Arguments Or |
