The Virginia Business Litigation Blog
Suppose you lose a motion you thought you would almost certainly win. “The court got it wrong,” you tell yourself, perhaps even sincerely. Do you file a follow-up motion asking the court to change its mind? Or do you file it away in the “grounds for appeal” category? Motions for reconsideration are disfavored in every jurisdiction and you’ve already lost once–so the odds are against you–but if the court made a clear mistake of law, it can make sense to inform the court of the mistake. The permissible grounds for seeking reconsideration depend on whether you’re in federal court or state court.
The Federal Rules of Civil Procedure do not expressly allow motions for reconsideration, but district courts generally treat them as being filed under Rule 59 or 60. Still, reconsideration of a judgment is considered an extraordinary remedy which will be granted only sparingly. Rule 60(b) allows for “relief from a final judgment, order, or proceeding” in certain circumstances. Those circumstances include mistake, excusable neglect, newly discovered evidence, fraud by an opposing party, and “any other reason that justifies relief.” That catch-all is not as broad as it sounds, however. The Fourth Circuit has held that Rule 60(b) “does not authorize a motion merely for reconsideration of a legal issue” and that Rule 60 cannot be used to make a motion simply asking the court to change its mind. In federal courts sitting in Virginia, motions for reconsideration cannot be granted where the moving party simply seeks to have the court rethink what it has already thought through–regardless of whether its decision is right or wrong.
Rule 59(e), which allows an aggrieved party to move to “alter or amend a judgment,” is another Rule sometimes employed as a basis for seeking reconsideration. A motion for reconsideration brought under Rule 59(e), may only be granted in very narrow circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. To qualify under the “clear error” exception, a prior decision must be more than “just maybe or probably wrong; it must strike [the Court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” (See U.S. Tobacco Coop. v. Big S. Wholesale of Va., LLC, 899 F.3d 236, 258 (4th Cir. 2018)). As with Rule 60 motions, Rule 59 motions are not justified by a party’s mere disagreement with the court’s ruling as the Rule is not intended to give the losing party’s attorney a second bite at the apple.
What’s clear is that you should not attempt to present new evidence on a motion for reconsideration that was not presented at the hearing on the underlying motion. Motions for reconsideration are not a means of forcing a judge to reexamine matters adequately and previously addressed. Any such motion based on previously available evidence should ordinarily be denied. (See Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325-26 (4th Cir. 2017)).
In Virginia state court, by contrast, motions to reconsider can be made on any ground. You can repeat the arguments you already made, or you can make new arguments–whatever you believe would be most effective at persuading the court it made a mistake. The Rules of the Virginia Supreme Court expressly allow for such motions, the only caveat being that there is no right to a hearing as there is with most other motions. In Virginia state-court practice, moving for reconsideration can be a way to get the court to reverse itself without having to go through the cumbersome appeal process. Federal courts disapprove of this procedural tactic, but it is perfectly acceptable in state court. Another reason motions for reconsideration tend to be more effective in state court is that in state court, opening briefs are often limited to five pages, whereas motions for reconsideration may include up to 20 pages, allowing the attorney to present the arguments in greater detail and broadening the potential grounds for an appeal. In federal court, by contrast, all briefs are subject to the same page-limit requirements.