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Jacobs v. Fareportal, Inc.

United States District Court, D. Nebraska

December 14, 2018

IAN V. JACOBS, Plaintiff,
v.
FAREPORTAL, INC., Defendant.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         Plaintiff's 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).

         On 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 No. 116).

         The 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.

         ANALYSIS

         While 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.

         Under Rule 60(b), when properly supported, the court may relieve a party from an order under this rule for the following reasons:

(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 ...

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