United States District Court, D. Nevada
ORDER [DOCKET NO. 26]
J. Koppe, United States Magistrate Judge
before the Court is Defendant's motion for
reconsideration of the order denying the motion for relief
with respect to the noticed deposition of Justine Rutter.
Docket No. 26. The motion for reconsideration was filed on an
emergency basis and any response was due by noon today,
November 7, 2019. Docket No. 29. No response has been filed.
The motion is properly resolved without a hearing.
See Local Rule 78-1. For the reasons discussed
below, the motion is GRANTED in part and
DENIED in part.
September 19, 2019, Plaintiff noticed the deposition of
Defendant's employee Justine Rutter to take place in Las
Vegas on November 13, 2019. Docket No. 20-1. Hence,
55-days' notice was provided for that deposition. On
September 30, 2019, Defendant objected to this notice by
asserting that (1) Ms. Rutter cannot be compelled to testify
in Nevada because she is not a resident here, (2) the
deposition was unilaterally noticed without consulting with
defense counsel, and (3) the deposition testimony should have
been subpoenaed because Ms. Rutter is a non-party.
No. 20-3 at 4. The meet-and-confer was not conducted for
another 32 days, until November 1, 2019. Docket No. 20 at 2.
On November 5, 2019, Defendant moved for relief from the
deposition that was then scheduled to take place just four
business days later. See Docket No. 20 (notice of
electronic filing). Given the failure to promptly move for
relief, the Court summarily denied Defendant's motion as
untimely. Docket No. 22 (citing, inter alia,
Cardoza v. Bloomin' Brands, Inc., 141 F.Supp.3d
1137, 1143 (D. Nev. 2015) and Allstate Ins. Co. v.
Nassiri, 2011 WL 4905639, *1 (D. Nev. Oct. 14,
and Ms. Rutter are now before the Court seeking
reconsideration of that order. Docket No. 26. The primary basis
for that request is to alert the Court to the fact that
counsel's “initial overture” to initiate the
meet-and-confer was on October 28, 2019, which counsel
characterizes as “much earlier” than the actual
meet-and-confer date of November 1, 2019. Id. at 2,
3. The motion for reconsideration also makes clear that, due
to poor advice from counsel, Ms. Rutter is currently overseas
for a pre-planned wedding and is unavailable for deposition
on the scheduled date. See Id. at 5.
is an extraordinary remedy, to be used sparingly.”
Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc.,
245 F.R.D. 470, 472 (D. Nev. 2007) (citation and internal
quotations omitted). Motions for reconsideration are
disfavored. Local Rule 59-1(b).
of an interlocutory order may be appropriate if (1) there is
newly discovered evidence that was not available when the
original motion or response was filed, (2) the Court
committed clear error or the initial decision was manifestly
unjust, or (3) there is an intervening change in controlling
law. Local Rule 59-1(a). It is well-settled that a motion for
reconsideration “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
litigation.” Phillips v. C.R. Bard, Inc., 290
F.R.D. 615, 670 (D. Nev. 2013) (emphasis in original,
citation and internal quotations omitted). On the other hand,
“[a] movant must not repeat arguments already presented
unless (and only to the extent) necessary to explain
controlling, intervening law or to argue new facts.”
Local Rule 59-1(b).
applying these standards, the Court first rejects
Defendant's argument that reconsideration is proper based
on the newly-raised-but previously existing-fact that counsel
first reached out to schedule a meet-and-confer on October
28, 2019. That fact does not in any way change the conclusion
that counsel unduly delayed in bringing a motion for relief
from the deposition. Again, counsel was provided
55-days' notice of the deposition, but did not
file a motion for relief until four business days before the
deposition was scheduled to take place. That fatal
circumstance is left unchanged regardless of the fact being
newly raised, and the circumstances as currently presented in
the motion for reconsideration continue to show that
Defendant's motion was properly denied as untimely.
See, e.g., Allstate Ins. Co. v. Nassiri,
2011 WL 4905639, *1 (D. Nev. Oct. 14, 2011) (overruling
objections to magistrate judge order finding an emergency
motion to quash subpoena was untimely when three-weeks'
notice was provided for a deposition but the motion to quash
was filed only three business days before the deposition).
motion for reconsideration gains more traction in the
also-newly-raised fact that, on the advice of counsel, Ms.
Rutter left the country for a pre-planned wedding and is
unavailable to be deposed as currently scheduled. To be
clear, this fact should have been raised in the motion
itself. Moreover, and more importantly, the advice of counsel
evidences a fundamental misunderstanding of the judicial
process: a litigant cannot grant himself the relief he seeks
by filing a motion. See, e.g., Nationstar Mtg.,
LLC v. Flamingo Trails No. 7 Landscape Maintenance
Assoc., 316 F.R.D. 327, 336 (D. Nev. 2016) (discussing,
inter alia, Pioche Mines Consol., Inc. v.
Dolman, 333 F.2d 257, 269 (9th Cir. 1964)). Only an
order from the Court actually relieves a witness from
appearing at a deposition. See Id. An attorney is
living dangerously in advising a client that she may leave
the country notwithstanding a scheduled deposition when there
has been no stipulation with opposing counsel to move the
deposition date and no order from the Court vacating it. The
Court would be well within its discretion to deny
reconsideration given these circumstances, but as a
one-time courtesy to Ms. Rutter herself,
the Court will reconsider its prior order only in that the
current deposition date is vacated. The ship has sailed on
the other arguments presented, however, including those
regarding the method of service and the location of the
deposition; those arguments were waived by failing to file a
timely motion. See, e.g., Fed. R. Civ. P. 45(d)(3).
Accordingly, Ms. Rutter must appear for deposition in Las
Vegas at a mutually agreeable date no later than seven days
after her return from her overseas trip.
reasons discussed above, the motion for reconsideration is