Attorney-at-Law

VACATION? RECONSIDERATION? WHO CARES?

In Uncategorized on 10/13/2020 at 10:29

Judge Colvin Does

And he’s happy to provide a short summary, in support of a Sum. Op., Deborah Louise Biegalski, 4671-18S, filed 10/13/20. Deb’s Sum. Op. is 2019 T. C. Sum. Op. 35, filed 12/3/19. I didn’t blog it because I had four (count ’em, four) more interesting matters that day, including but without in any way limiting the generality of the foregoing (as my power-breakfasting colleagues would say) a full-dress T. C.

Deb filed a 162 vacation motion, but Judge Colvin says she meant Rule 161 reconsideration, treats the motion as such, and denies it. Deb says Judge Colvin got it wrong, and it matters whether her motion is considered pursuant to Rule 162; using Rule 161 is an error.

Wrong, says Judge Colvin. But here’s how they differ.

“The standard for granting relief under Rule 161 is ‘to correct substantial errors of fact or law and allow the introduction of newly discovered evidence that the moving party could not have introduced by the exercise of due diligence in the prior proceeding. Reconsideration is not the appropriate forum for rehashing previously rejected legal arguments or tendering new legal theories to reach the end result desired by the moving party. The standard for granting relief under Rule 162 is to make corrections after a showing of unusual circumstances or substantial error, e.g., mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or other reason justifying relief.” Order, at p. 1 (Citations omitted).

But vive la difference doesn’t help Deb.

“Petitioner does not prevail under either standard. Petitioner does not identify any substantial errors in fact or law in the opinion, does not present any evidence that was not available at the time of trial, and does not identify any unusual circumstances. She merely repeats her interpretation of the facts, her prior testimony, and the arguments she made at trial and in her posttrial briefs, all of which were previously considered by the Court.” Order, at p. 2.

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