• May 20, 2016


Update (May 20, 2016): Below, I noted a rare granting of a motion to reconsider. It is not all that surprising when a court agrees to change its decision after it has already agreed to “reconsider” an earlier decision. That happened here. Congratulations, again, to ADM counsel, Curtis Ripley of Stinson Leonard. As a bonus, ADM counsel was also able to beat back a request by Plaintiff’s counsel to allow for a claim of punitive damages. Plaintiff’s request was two years after the deadline and the delay, the Court held, was not justified.

Original post (February 22, 2016) (under the headline: Well, well, well, what do we have here? Ripping Off Groundwater?): A company paid a farmer $20,000 to dig two wells (for water) on the farmer’s property. The wells aged and and a successor company had to negotiate with the farmer to dig new wells on the property. Or did it? The successor company took the position that it had bought the right to two wells on the property so it could simply stop up or dismantle the first two wells and then dig two more in the same vicinity (that is, in the same “well site,” a defined term under the original contract).

Earlier this year, U.S. District Court Judge Michael J. Davis (D. Minn.) construed the contract and held that the defendant company (ADM) was not eligible for a BOGO bargain (“buy one, get one free”) (or, more accurately, BTGTF?). Not only that, Judge Davis ruled that the farmer plaintiff could proceed against ADM for theft of the farmer’s water.

ADM asked Judge Davis to reconsider.

Can one “steal” groundwater?

Whose water is it anyway?

ADM asked Judge Davis to give this specific issue a little bit more (re)consideration.

Counsel for the plaintiffs strongly objected to the request, essentially arguing that ADM was not so much asking the Court to “reconsider” as it was asking the Court to consider a new argument for the first time in ADM’s so-called motion for reconsideration.

But Judge Davis, this past week, okay’d briefing on the issue raised by ADM.

Motions for reconsideration are tricky affairs. Absent some glaring error or resoundingly important newly-discovered evidence that shows an earlier decision is plainly wrong, a court may see a litigant asking a court for reconsideration as asking for a “do-over.” Aside from the fact that the litigant is essentially asking the judge to admit the judge made a mistake on the first round, which many people, judges or otherwise, do not like to do — wholly aside from this psycho-social dynamic barrier — a dispute resolution system will be reluctant to “reconsider” decisions. The system is designed to discourage both repetition and delay.

On the other hand, analogous to a surgical tool with a specialized use that must be handled with care, the reconsideration tool, when used properly, can be a life saver. Congratulations to ADM counsel, Curtis Ripley of Stinson Leonard, for obtaining the relatively rare grant of a request for leave to move for reconsideration although it remains to be seen whether the well battle will ultimately end well for him and his client.


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