United States District Court, D. Nebraska
IAN V. JACOBS, Plaintiff,
FAREPORTAL, INC., Defendant.
MEMORANDUM AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff/Counter-Defendant Ian
V. Jacobs' Motion for Reconsideration of the Order
Denying Plaintiff's Motion to Compel and Granting Staged
Discovery. (Filing No. 119). For the reasons explained below,
Defendant's motion is denied.
complaint alleges an action for trademark infringement under
the Lanham Act (15 U.S.C. §§ 1051 et
seq.), trademark infringement, unfair competition, and
unjust enrichment under Nebraska common law, unfair
competition under the Nebraska Consumer Protection Act (Neb.
Rev. Stat. §§ 59-1601 to 59-1622), and deceptive
trade practices under the Nebraska Uniform Deceptive Trade
Practices Act (Neb. Rev. Stat. §§ 87-301 to
87-306). (Filing No. 1, at CM/ECF p. 1).
September 28, 2018, Plaintiff filed a motion to compel and
for recovery of attorneys' fees. (Filing No. 89). On
October 5, 2018, Defendant filed a response, therein asking
this court to stage liability and damages discovery under
Federal Rule of Civil Procedure 26's proportionality
requirement. (Filing No. 97). On November 21, 2018, the
undersigned denied Plaintiff's motion to compel and
granted Defendant's request to stage discovery. (Filing
court found staged discovery as the most suitable means to
achieve proportionality and to efficiently and effectively
dispose of the issues of the case. The court further found
requiring the parties make a showing to support a finding of
liability before damages are considered will not unduly
prejudice either party. Rather, staging liability and damages
discovery will preserve both the parties' time and
expenses and the court's resources. The court, therefore,
ordered that discovery be staged as to both parties'
claims, with liability discovery performed as the first phase
and damages discovery permitted only after the court is
convinced that liability may be imposed against either party.
The court now affirms its prior decision.
there is no Local Rule or Federal Rule of Civil Procedure
described as a “motion to reconsider, ” the
Eighth Circuit typically construes such motions as arising
either under Federal Rule of Civil Procedure 59(e) or 60(b).
White v. Smith, 808 F.Supp.2d 1174, 1236 (D. Neb.
2011) (citing Ackerland v. United States, 633 F.3d
698, 701 (8th Cir. 2011). Rule 59(e) provides that a party
may request alteration or amendment to final judgments, (Fed.
R. Civ. P. 59), while Rule 60 allows relief from both orders
and judgments. Fed.R.Civ.P. 60. Therefore, the court will
consider Plaintiff's motion to reconsider according to
Rule 60(b) of the Federal Rules of Civil Procedure.
Rule 60(b), when properly supported, the court may relieve a
party from an order under this rule for the following
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...