United States District Court, D. Nebraska
FRANCO RIBEIRO, as individuals and as next friends and biological parents of Lucas Ribeiro, an infant; and DEANNA RIBEIRO, as individuals and as next friends and biological parents of Lucas Ribeiro, an infant; Plaintiffs,
BABY TREND, INC., a corporation; MARK SEDLACK; MILLENNIUM DEVELOPMENT CORP.; INDIANA MILLS & MANUFACTURING INC.; LERADO GROUP CO., LTD.; LERADO GROUP HOLDING COMPANY, LTD.; LERADO ZHONG SHAN INDUSTRIAL CO., LTD.; LERADO CHINA LIMITED; LERADO H.K. LIMITED; HOLMBERGS SAFETY SYSTEM HOLDING AB; GNOSJOGRUPPEN AB; HOLMBERGS CHILDSAFETY AB; MAXI MILIAAN B.V., AND DOREL INDUSTRIES, INC., Defendants.
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge
matter is before the court on the plaintiffs' motion to
reconsider and amend, or in the alternative, stay, this
court's order dismissing defendant Gnotec Reftele AB
f/k/a Kendrion Holmbergs (“Gnotec”) for lack of
personal jurisdiction, Filing No. 447.See Filing No.
435, Memorandum and Order. Gnotec resists the motion and
further requests that the court grant it thirty days from the
date of this order to move for costs associated with the
dismissal of Gnotec and its related entities. See Filing
No. 459, Gnotec's Memorandum in Response at 18.
their motion for reconsideration, the plaintiffs assert they
were misled by Gnotec during jurisdictional discovery and
have now discovered new evidence. The purported new evidence
was obtained in the documents produced by defendant Mark
Sedlack and his company, Millennium Development Corporation
(“Millennium Development”), on May 10, 2016 and
in the Rule 30(b)(6) deposition of Sedlack on June 1, 2016.
The newly discovered evidence purportedly shows that Global
Products Incorporated ("Global”) was actually
Gnotec's sales arm in the United States and Global
directly solicited Millennium Development, as a customer of
Gnotec, to supply buckles and tongues for Baby Trend car
seats. The plaintiffs argue that the new evidence contradicts
Gnotec's sworn testimony and shows, for the first time,
that Global was directly involved with soliciting Millennium
Development as a client so that Gnotec's buckle and
tongues would be specifically used in Baby Trend car seats.
“motion to reconsider” is not authorized by the
Federal Rules of Civil Procedure. Sanders v. Clemco
Indus., 862 F.2d 161, 168 (8th Cir. 1988). Thus,
“[f]ederal courts have construed this type of motion as
arising under either Rule 59(e) (motion to alter or amend the
judgment) or Rule 60 (b) (relief from judgment for mistake or
other reason).” Id. Courts have generally
viewed any motion which seeks a substantive change in a
judgment as a Rule 59(e) motion if it is made within
twenty-eight days of the entry of the judgment, as required
by the Rule. See Omaha Indian Tribe v. Tract I--Blackbird
Bend Area, 933 F.2d 1462, 1467 n.3 (8th Cir. 1991)
(applying former ten-day time limit). Conversely, if a motion
is untimely filed under Rule 59(e), it is treated as a Rule
60(b) motion. See Baxter Int'l. Inc. v.
Morris, 11 F.3d 90, 92 n.2 (8th Cir. 1993) (holding that
motion denominated as “Motion to Reconsider”
would be treated as Rule 60(b) motion where it was filed more
than 10 days after entry of the judgment). A motion under
Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) no more than a year after the entry
of the judgment or order or the date of the proceeding.
59(e) motions serve the limited function of correcting
“‘manifest errors of law or fact or to present
newly discovered evidence.'” United States v.
Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933
(8th Cir. 2006) (quoting Innovative Home Health Care v.
P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286
(8th Cir. 1998). “Such motions cannot be used to
introduce new evidence, tender new legal theories, or raise
arguments which could have been offered or raised prior to
entry of judgment.” Innovative Home Health
Care, 141 F.3d at 1286. To prevail on a Rule 59(e)
motion, the movant must show that (1) the evidence was
discovered after trial; (2) the movant exercised due
diligence to discover the evidence before the end of trial;
(3) the evidence is material and not merely cumulative or
impeaching; and (4) a new trial considering the evidence
would probably produce a different result. Metropolitan
St. Louis Sewer Dist., 440 F.3d at 933.
59(e) and Rule 60(b)(2) are analyzed identically.
Id. at n.3 (8th Cir. 2006). A person moving for
relief pursuant to Rule 60(b)(2) must generally establish the
following: (1) the evidence was discovered after trial; (2)
due diligence was exercised to discover the evidence; (3) the
evidence is material and not merely cumulative or impeaching;
and (4) the evidence is such that a new trial would probably
produce a different result. To prevail under Rule 60(b)(3),
"the movant must show, with clear and convincing
evidence, that the opposing party engaged in a fraud or
misrepresentation that prevented the movant from fully and
fairly presenting its case." Atkinson v. Prudential
Property Co., Inc., 43 F.3d 367, 373 (8th Cir. 1994).
court has reviewed the evidence submitted in connection with
the plaintiffs' motion. The court finds the plaintiffs
have not shown either that the evidence could not reasonably
have been discovered earlier, or that the evidence would
change the result. The testimony and exhibits submitted by
the plaintiffs do not directly contradict the testimony of
Gnotec's representative. Gnotec's representative
testified that Gnotec used Global as an independent
consultant to distribute its products in the United States.
The plaintiffs were aware of that fact at the time
Gnotec's Rule 30(b)(6) representative was deposed.
to the plaintiffs' assertions, the purported new evidence
does not establish that Gnotec either worked with Baby Trend
to design the new buckle or that it distributed its buckle in
the United States through Global. It does not establish
whether the redesign request was remitted to Gnotec through
Global or through another entity. The chain of emails
produced in connection with the motion do not include
communications with Gnotec. The “new” evidence
shows nothing more than some level of communication that
involved Gnotec; it does not establish that Gnotec knew the
component parts it manufactured would be distributed in
Nebraska. The evidence still establishes nothing more than
that Gnotec placed its component parts in the stream of
international commerce; there remains no evidence that Gnotec
expected its products to be purchased in this state. The
plaintiffs' purportedly “new” evidence does
not refer to the State of Nebraska nor does it support a
finding that Gnotec purposefully directed its activities to
the State of Nebraska. Accordingly, the court stands by its
earlier ruling. For the same reasons, the court declines to
issue a stay.
argues that the plaintiffs have refused to voluntarily
dismiss Gnotec's related entities-Holmbergs Safety System
Holding AB, Gnosjogruppen AB, and Holmbergs Childsafety
AB-and requests “that it be allowed to reserve the
right to recover the costs associated with this action in the
event Plaintiffs refuse to do so.” Filing No.
459, Gnotec's Memorandum in Response at 18. The
court finds that request is premature. The court sees no
reason to depart from the requirements of Fed.R.Civ.P.
54(d)(1) or NECivR 54.1.
1. The plaintiffs' motion for reconsideration, construed
as a Rule 59(e) motion (Filing No. 447), or
alternatively for a stay, is denied.
2. Defendant Gnotec's request regarding costs is denied
as premature. Dated this 25th day of August, 2016