Givens v. Oenga Jr.

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RAYMOND C. GIVENS, )
)
Plaintiff, )
)
vs. )
)
LEROY OENGA, JR., )
) No. 3:21-cv -0008-HRH
Defendant. )
_______________________________________)
O R D E R
Motion for Reconsideration1
Defendant moves for reconsideration of the court’s order of June 9, 2021.2 The
motion is opposed by plaintiff,3 and defendant has replied.4 Oral argument has not been
requested and is not deemed necessary.
Local Rule 7.3(h) makes provision for the filing of motions for reconsideration.
The rule provides that:
1Docket No. 32.
2Docket No. 30.
3Docket No. 36.
4Docket No. 40.
ORDER – Motion for Reconsideration - 1 -
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(1) A court will ordinarily deny a motion for reconsidera-
tion absent a showing of one of the following:
(A) manifest error of the law or fact;
(B) discovery of new material facts not previously avail-
able; or
(C) intervening change in the law.
After initial consideration of the motion for reconsideration, and pursuant to Local
Rule 7.3(h)(3)-(4), the court requested a response to the motion for reconsideration and
made provision for a reply memorandum.
In denying defendant’s motion to dismiss, the court prefaced its ruling by expressly
telling the parties that “based on the facts that are presently before the court, the court con-
cludes that the material portion of the legal services that plaintiff provided to the Oenga
heirs was not rendered in the state of Alaska.”5 In his motion for reconsideration, defen-
dant has put before the court significant factual information that was not before the court
when defendant’s motion to dismiss was ruled upon. Defendant contends that the follow-
ing facts, which are undisputed, are newly discovered:
(1) The June 23, 2011, mediation and signing of the confidential term
sheet occurred in Fairbanks, Alaska, with Mr. Givens present in the
State of Alaska.6
5Order (Motion to Dismiss) at 6 (June 9, 2021), Docket No. 30 (emphasis omitted).
6Motion for Reconsideration at 3, Docket No. 32 (emphasis omitted).
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(2) The signatures on the Contingency Fee Contract First Amendment are
dated August 5, 2011, and occurred in Fairbanks, Alaska, with
Mr. Givens present in the State of Alaska.7
(3) The signatures of the Heirs on the Fee/Cost Reduction Agreement and
the 2012 Settlement Agreement are all dated May 24, 2012, and
occurred in Fairbanks, Alaska, with Mr. Givens present.8
Responding to the motion for reconsideration, plaintiff argues that the foregoing
facts are not newly discovered evidence that was previously unavailable to defendant.
Defendant’s reply9 is unconvincing. Based upon plaintiff’s declaration,10 the court finds
that the evidence put before the court for the first time in plaintiff’s motion for reconsider-
ation is not newly discovered. That information was known by defendant because of his
participation in the proceedings which took place in Fairbanks, Alaska. But, in light of the
long history of the litigation underlying this case, and in consideration of the fact that
defendant certainly had no motive to withhold the above information from the court, the
court finds that it would be manifestly unjust for the court to refuse to consider the facts put
before the court in defendant’s motion for reconsideration.
Defendant’s motion for reconsideration is granted. Defendant’s motion to dismiss11
is reinstated and an amended order will be entered in due course and after full consideration
7Id.
8Id. at 4. See also, Declaration of Counsel at 2, ¶ 5, appended to Motion for
Reconsideration [etc.], Docket No. 32.
9Reply to Opposition to Motion for Reconsideration [etc.] at 5, Docket No. 40.
10Docket No. 37.
11Docket No. 17.
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of all the evidence now before the court. The issue now before the court is: Was “no
material portion” of plaintiff’s legal work for the Oenga heirs rendered in Alaska? Alaska
Bar Rule 34(c)(1).
DATED at Anchorage, Alaska, this 13th day of July, 2021.
/s/ H. Russel Holland
United States District Judge
ORDER – Motion for Reconsideration - 4 -
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