United States District Court, D. Nebraska
CONSOLIDATED INFRASTRUCTURE GROUP, INC., ERIC MOODY, ZACK MANTEY, BRIAN HANNA, TRAVIS DANIELS, BRENT COFFIELD, and TOM ORTH, Plaintiffs,
USIC, LLC, USIC LOCATING SERVICES, LLC, and LOCATE HOLDINGS, INC., Defendants.
MEMORANDUM AND ORDER
F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiffs' motion for
leave to drop parties, Filing No. 35, and motion for
leave to amend complaint, Filing No. 37, and motion
to reconsider the court's earlier order, Filing No.
39. This is a declaratory judgment action involving
alleged misappropriation of trade secrets and restrictive
court will first address the motion to reconsider because
resolution of that motion is dispositive of the other two
motions. In an order dated May 18, 2017, this court granted
the defendants' motion to transfer and ordered this
dispute to be transferred to the Southern District of
Indiana. Filing No. 31, Memorandum and Order. The
court found the first-filed rule was of limited applicability
and that transfer was appropriate because of a
forum-selection clause. Id. The court stayed the
transfer pending the disposition of the pending motions.
Filing No. 41, Text Order. Once the case is transferred, this
court will lack jurisdiction to take any further actions in
this matter, including granting leave to amend the pleadings.
See In re Nine Mile Ltd., 673 F.2d 242, 243-44 (8th
plaintiffs argue that the court should defer to their choice
of forum and that the “private interest factors”
weigh in their favor. They also argue that their request for
injunctive relief should offset the red flags indicating
“compelling circumstances” to justify an
exception to the first-filed rule. Further, they argue that
if they are allowed to amend their pleadings to drop parties
and claims, a change of venue is no longer warranted.
“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 generally
view any motion which seeks a substantive change in the
judgment as a Rule 59(e) motion if it is made within ten days
of the entry of the judgment.” Omaha Indian Tribe
v. Tract I-Blackbird Bend Area, 933 F.2d 1462, 1467 n.3
(8th Cir. 1991). However, Rule 59(e) motions are motions to
alter or amend a judgment, not a nonfinal order.
Broadwa y v. Norris, 193 F.3d 987, 989 (8th Cir.
1999) (emphasis added); see also Elder-Keep v.
Aksamit, 460 F.3d 979, 984-85 (8th Cir. 2006). “By
its terms, only Rule 60(b) encompasses a motion filed in
response to an order” and a motion to reconsider a
nonfinal order is properly viewed under Federal Rule of Civil
Procedure 60(b). Id.
to reconsider a nonfinal order should be
“‘granted only in exceptional circumstances
requiring extraordinary relief.'” Nelson v. Am.
Home Assur. Co., 702 F.3d 1038, 1043 (8th Cir. 2012)
(quoting Minn. Supply Co. v. Raymond Corp., 472 F.3d
524, 534 (8th Cir. 2006)). Such motions “‘serve a
limited function: to correct manifest errors of law or fact
or to present newly discovered evidence.'”
Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721
(8th Cir. 2010) (quoting Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 414 (8th Cir. 1988)). Rule 60(b)
“authorizes relief based on certain enumerated
circumstances . . . . It is not a vehicle for simple
reargument on the merits.” Broadwa y, 193 F.3d
court finds the plaintiffs, for the most part, merely reargue
their earlier position. The plaintiffs have not presented
newly discovered evidence or shown any manifest errors of
law. The core of the action is a challenge to restrictive
covenants in employment agreements with a forum-selection
clause. The plaintiffs' tactical decisions to seek leave
to drop parties and claims could have been pursued before the
court ruled on the defendants' motion to dismiss or
transfer. They have not propounded any reason for failing to
do so. Because the plaintiffs have not presented any
exceptional circumstances to support the granting of their
motion to reconsider, the court finds the motion should be
denied and the stay of the transfer order should be lifted.
court is without jurisdiction to address the other motions.
The court notes, however, that the plaintiffs' proposed
amendments would not ensure a different result as to venue
because the defendants would likely file counterclaims and/or
implead the dismissed plaintiffs. The court sees no reason to
disturb its earlier ruling that Indiana, not Nebraska, is the
proper forum for this action. Accordingly, IT IS ORDERED:
1. The plaintiffs' motion to reconsider (Filing No.
39) is denied.
2. The court does not have jurisdiction over the
plaintiffs' motions for leave to dismiss parties and for
leave to file an amended complaint (Fil ...