United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey Chief United States District Judge.
the Court is Defendant's Motion for Reconsideration. (ECF
No. 55). Plaintiff has not responded to the motion and the
time to do so has passed. The Court finds this matter ripe for
30, 2017, Plaintiff-a former server at a Colton's Steak
House and Grill restaurant in Hot Springs, Arkansas-filed a
collective action complaint, individually and on behalf of
all others similarly situated. In the Complaint, Plaintiff
alleges that Defendant operated an unlawful tip-pooling
arrangement and failed to pay her at least the minimum wage
for hours she worked performing non-tipped duties, in
violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and the Arkansas Minimum Wage Act, Ark. Code Ann. §
11-4-201 et seq. ECF No. 1. On August 8, 2017,
Plaintiff Thompson moved for conditional certification of her
FLSA claims as a collective action pursuant to 29 U.S.C.
§ 216(b). (ECF No. 9). The Court granted conditional
certification of the collective action on November 7, 2017,
authorizing distribution of notice of this litigation to
other potential members of the collective action. (ECF No.
19). The notice informed potential plaintiffs that they
“may be required to provide information, sit for
depositions, and testify in court.” (ECF No. 9-1).
Sixteen individuals have filed consents to join as additional
opt-in plaintiffs. See (ECF Nos. 20, 22-31).
noticed all fifteen available opt-in plaintiffs to appear for
depositions.However, only six opt-in plaintiffs
appeared and were deposed. On May 25, 2018, Defendant filed
its Motion to Dismiss Party (ECF No. 38), arguing that the
Court should dismiss the ten opt-in plaintiffs who failed to
appear for properly noticed depositions.
18, 2018, the Court entered an order (ECF No. 54) denying
Defendant's motion because Defendant failed to comply
with Federal Rule of Civil Procedure 30(a)(2). On June 26,
2018, Defendant filed the instant Motion for Reconsideration
(ECF No. 55), arguing that the Court should reconsider its
order to correct manifest errors of fact. Specifically,
Defendant argues that the Court failed to consider that the
parties had stipulated to depose nine opt-in plaintiffs.
Federal Rules of Civil Procedure do not account for
“motions to reconsider.” However, the Eighth
Circuit instructs that “motions to reconsider are
‘nothing more than Rule 60(b) motion[s] when directed
at non-final orders.'” Nelson v. Am. Home
Assur. Co., 702 F.3d 1038, 1043 (8th Cir. 2012) (quoting
Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.
2006)). Defendant made its motion to reconsider pursuant to
Federal Rule of Civil Procedure 59(e), which allows for
altering or amending judgments. However, the instant motion
is directed at a non-final order. See (ECF No. 54).
Thus, the Court will consider Defendant's motion to
reconsider as it would a Rule 60(b) motion.
Rule of Civil Procedure 60(b) allows a district court to
relieve a party from a judgment on the narrow grounds of
mistake, inadvertence, surprise, excusable neglect, newly
discovered evidence, voidness, or “any other reason
justifying relief from the operation of the judgment.”
Fed.R.Civ.P. 60(b). The purpose of Rule 60(b) relief is not
to give parties an opportunity to re-argue their case, and it
should not be used as a substitute for a timely appeal.
Fox v. Brewer, 620 F.2d 177, 180 (8th Cir. 1980);
Nichols v. United States, No. 4:00-cr-00022-003-WRW,
2006 WL 3420303 (E.D. Ark. Nov. 28, 2006). A motion brought
under any provision of Rule 60(b) must be brought
“within a reasonable time.” Fed.R.Civ.P.
60(c)(1). What constitutes “a reasonable time”
depends on the circumstances surrounding the motion.
Middleton v. McDonald, 388 F.3d 614, 617 (8th Cir.
stated above, Defendant seeks reconsideration of the
Court's order denying its Motion to Dismiss Party. (ECF
No. 38). The Court denied Defendant's Motion to Dismiss
Party (ECF No. 38) because it found that Defendant failed to
comply with Federal Rule of Civil Procedure 30(a)(2). Rule
30(a)(2) requires that, absent a stipulation between the
parties, a party must obtain leave of court prior to
commencing any depositions in excess of the ten-deposition
limit. Fed.R.Civ.P. 30(a)(2). The parties did not stipulate
to taking more than ten depositions, and Defendant failed to
obtain leave to take more than ten depositions. However,
Defendant noticed and attempted to depose all fifteen
available opt-in plaintiffs.
argues that the Court should reconsider its ruling to rectify
a manifest error of fact. Specifically, Defendant argues that
the parties stipulated to depose nine opt-in plaintiffs.
Defendant was able to depose six opt-in plaintiffs. Three
additional opt-in plaintiffs contacted Defendant and
scheduled depositions but failed to appear. Defendant argues
that these three no-show, opt-in plaintiffs should be
dismissed as parties from this action.
Court finds that Defendant has not demonstrated sufficient
cause to warrant reconsideration. In its Motion to Dismiss
Party (ECF No. 38), Defendant moved to dismiss all ten of the
opt-in plaintiffs who failed to appear for depositions. Now,
for the first time, Defendant argues that the Court should
dismiss just the three opt-in plaintiffs who scheduled
depositions but failed to appear. A motion to reconsider is
not a vehicle to argue points that could have originally been
put before the Court. See Fox, 620 F.2d at 180 (8th
Cir. 1980) (holding a motion to reconsider is not an
opportunity to re-argue one's case). Moreover, although
the parties stipulated to deposing nine opt-in plaintiffs,
Defendant still violated Rule 30(a)(2) when it noticed and
attempted to depose fifteen opt-in plaintiffs. Therefore, the
Court declines to reconsider its previous ruling denying
Defendant's Motion to Dismiss Party. (ECF No. 38).
foregoing reasons, the Court finds that Defendant's
Motion for Reconsideration (ECF No. ...