<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    The Lawletter Blog

    CIVIL PROCEDURE: Successive Motions for Summary Judgment—When to Try for a “Second Bite at the Apple”

    Posted by Lee P. Dunham on Fri, Nov 12, 2021 @ 09:11 AM

    The Lawletter Vol 46 No 6

    Lee Dunham—Senior Attorney, National Legal Research Group

         Your motion for summary judgment was denied. Not long thereafter, the judge in your case retires and is replaced by a new judge who seems much more sympathetic to your client’s arguments. The deadline to file a motion to reconsider has expired. Can you simply refile your motion and try your luck again with Judge #2? Sometimes, but caveats apply.

         Within a single action, consistency and efficiency are achieved by a doctrine known as the “law of the case.” See Watkins v. Elmore, 745 F. App’x 100, 102 (11th Cir. 2018); In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 n.3 (11th Cir. 1990). It is broadly similar to res judicata in that under the law-of-the-case doctrine, as a general rule, “an issue decided at one stage of a case is binding at later stages of the same case.” United States v. Escobar-Urrego, 110 F.3d 1556, 1560-61 (11th Cir. 1997); see also Hallahan v. Courier-Journal, 138 S.W.3d 699, 705 n.4 (Ky. Ct. App. 2004) (“The doctrine of law of the case establishes a presumption that a ruling made at one stage of a lawsuit will be adhered to throughout the lawsuit.”).

         Unlike res judicata, however, the law of the case is “not jurisdictional in nature, and the court's power is not limited thereby” but, rather, is “a rule of practice ‘self-imposed by the courts.’” United States v. Anderson, 772 F.3d 662, 668 (11th Cir. 2014). While res judicata is a rule of law, the law of the case merely “directs a court's discretion.” Arizona v. California, 460 U.S. 605, 618 (1983), decision supplemented, 466 U.S. 144 (1984).

         Notwithstanding the law-of-the-case doctrine, a court's previous rulings may be reconsidered as long as the case remains within the jurisdiction of the court. Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1289 (11th Cir. 2009); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (law-of-the-case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power,” and “[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance”). Moreover, law-of-the-case principles do not apply when “the prior decision was clearly erroneous and would result in a manifest injustice.” Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000); Murphy v. FDIC, 208 F.3d 959, 966 (11th Cir. 2000).

         The law-of-the-case doctrine applies to a court’s decision to grant summary judgment to a party subsequent to an earlier denial. Hallahan, 138 S.W.3d at 705 n.4. Although it is “well established” that a court has discretion to reconsider an earlier denial of summary judgment, such action should be taken only if the court “has a reasonable conviction that it was wrong and it would not cause undue prejudice to the party that benefited from it.” Id. However, it is an abuse of discretion to do so where reconsideration results in undue prejudice to the nonmovant. Id.; see also Davidson v. Castner-Knott Dry Goods Co., 202 S.W.3d 597, 602 (Ky. Ct. App. 2006). Additionally, “[t]he Court may decline to review a successive summary judgment motion ‘seeking precisely the same relief as before,’ where the moving party ‘has not raised any new facts or arguments which it could not have raised in the first round of briefing.’” Frederick v. Office of Mental Health, Rochester Psychiatric Ctr., 515 F. Supp. 3d 29, 32 (W.D.N.Y. 2021) (citing Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y. 2004)).

         In light of these authorities, the movant should not simply refile a new motion identical to the first one but should include an argument that granting the new motion would not cause undue prejudice to the nonmovant. Additionally, it is helpful if the movant can raise new facts and arguments in support of the motion, preferably based on evidence that was unavailable at the time of the prior motion.

         While the rules above apply in civil cases in federal courts and in most state courts, the putative movant should verify that the local rules or applicable law do not specifically prohibit or limit the filing of successive motions. See, e.g., Coccia v. Liotti, 101 A.D.3d 664, 666, 956 N.Y.S.2d 63, 64 (2012); Wash. R. King Super. Ct. LCR 7(b)(7).

    Topics: civil procedure, Lee Dunham, motions for summary judgment, law-of-the-case doctrine, no cause of undue prejudice

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice

    Subscribe to The Lawletter

    Latest Posts