Tescher v. Experian Information Solutions, Inc.

Background

Chaim B. Tescher asked for permission to further amend his first amended complaint. The court waived its pre-motion conference requirement, treated Tescher’s pre-motion letter as a motion to amend, and denied that motion on December 15, 2022. Tescher then moved for reconsideration under Local Civil Rule 6.3 and Federal Rule of Civil Procedure 59.1.

The proposed amendment involved class allegations. The court’s earlier order had found that Tescher had not shown that he diligently pursued discovery relevant to those allegations and that allowing amendment near the end of fact discovery would cause undue prejudice and delay. The earlier order also noted that the amendment would require a third extension of the discovery deadlines.

Reconsideration Standard

The court explained that reconsideration is an extraordinary remedy generally available only when there has been a change in controlling law, new evidence has become available, or the court needs to correct a clear error or prevent manifest injustice. It is not a way to repeat arguments, present new theories, or take a second opportunity to make the same motion.

Analysis

Tescher first argued that he had diligently pursued discovery. He said he needed testimony from the defendants, particularly PHH Mortgage Services, before seeking to amend and pointed to his request for PHH’s deposition availability in June 2022. The court noted that the case had been filed in February 2021, removed to federal court in March 2021, and had been pending for about 22 months when Tescher sought amendment. Although the court had stated in July 2021 that discovery could proceed, Tescher did not request PHH’s deposition until nearly a year later. The court found that Tescher had not shown that it overlooked material facts or that its earlier finding about his lack of diligence was erroneous.

Tescher next argued that amendment would not unduly prejudice Experian, relying on a decision stating that the need for additional discovery, by itself, is not enough to deny amendment. The court distinguished that decision because its earlier ruling was also based on Tescher’s failure to pursue discovery diligently and because Tescher sought amendment at the end of fact discovery. The court concluded that amendment would require reopening or extending discovery and would cause significant delay. Tescher therefore had not identified a change in controlling law or a clear error regarding prejudice.

The court also struck and disregarded the declaration of Daniel Zemel and its exhibits because Tescher had filed them without requesting permission, as required by Local Civil Rule 6.3. The court stated that even if it had considered those materials, they would not have shown that the earlier order overlooked or misunderstood anything.

Disposition

The court denied Tescher’s motion for reconsideration. It directed the clerk to terminate the motion pending at docket entry 94.