I 

ORIGINAL 


UNITED STATES OF AMERICA 


FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


) 

In the Matter of ) 

) 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

Respondents. ) 

----------------------------------) 

ORDER DENYING RESPONDENT'S MOTION FOR 

RECONSIDERATION AND RESPONDENT'S MOTION TO STRIKE 

I. Procedural Background 

On June 25,2012, Complaint Counsel, pursuant to Commission Rule ofPractice 

3.38, filed a Motion to Compel Respondent McWane, Inc.'s ("McWane"or "Respondent") 

Responses to Requests for Admissions ("Motion to Compel"). Respondent did not file any 

response to the Motion to Compel within the 5-day time period allowed under Commission 

Rule 3.38. 1 By Order dated July 5, 2012, Complaint Counsel's Motion to Compel was 

granted ("July 5 Order"). 

After the issuance ofthe July 5 Order, later in the day on July 5,2012, Respondent 

filed two motions: (1) Respondent McWane, Inc.'s Motion for Reconsideration ("Motion 

Commission Rule 3.38 provides in pertinent part: 

(a) Motion for order to compel. A party may apply by motion to the Administrative Law 

Judge for an order compelling disclosure or discovery, including ... a request for 

admission under § 3.32, ... Any response to the motion by the opposing party must be 

filed within 5 days of receipt of service of the motion. . .. The Administrative Law Judge 

shall rule on a motion to compel within 3 business days of the date in which the response is 

due. Unless the Administrative Law Judge determines that the objection is justified, the 

Administrative Law Judge shall order that ... an answer to any requests for admissions, 

... be made. 

16 C.F.R. § 3.38(a) (emphasis added). The certificate of service of Complaint Counsel's Motion to Compel 

represented that Respondent was served electronically on June 25, 2012. Pursuant to Rule 3.38(a), 

Respondent's response to that motion was due July 2,2012. No response was filed. 
for Reconsideration"); and (2) Respondent Mc Wane, Inc.' s Motion to Strike Complaint 

Counsel's Motion to Compel Responses to Requests for Admission as Premature or Moot, 

or in the Alternative, Opposition to Complaint Counsel's Motion ("Motion to Strike"). 

Complaint Counsel filed one opposition to both motions on July 10,2012 ("Opposition"). 

For the reasons set forth below, Respondent's Motion for Reconsideration is 


DENIED and Respondent's Motion to Strike is DENIED. 


II. Motion for Reconsideration 

Respondent seeks reconsideration ofthe July 5 Order granting Complaint 

Counsel's Motion to Compel, which ordered further responses to certain ofComplaint 

Counsel's Requests for Admissions and production ofrelated documents by Respondent. 

The standard for a motion for reconsideration is as follows: 

A motion for reconsideration of a decision may be made only on the 

grounds of: (a) a material difference in fact or law from that presented to the 

Administrative Law Judge before such decision, that in the exercise ofreasonable 

diligence could not have been known to the party moving for reconsideration at the 

time ofsuch decision; (b) the emergence ofnew material facts or a change oflaw 

occurring after the time of such decision; or ( c) a manifest showing of a failure to 

consider material facts presented to the Administrative Law Judge before such 

decision. . .. Reconsideration motions are not intended to be opportunities "to take 

a second bite at the apple" and relitigate previously decided matters. . .. 

[S]uch motions should be granted only sparingly. Courts have 

granted motions to reconsider where it appears the court mistakenly 

overlooked facts or precedent which, had they been considered, might 

reasonably have altered the result, or where reconsideration is 

necessary to remedy a clear error or to prevent manifest injustice. 

In re Intel Corp., 2010 FTC LEXIS 47, *4-6 (May 28,2010) (internal citation 

omitted). 

Respondent's sole argument in support ofits Motion for Reconsideration is that 

Complaint Counsel did not comply with the meet and confer requirements ofCommission 

Rule 3.22; thus, Complaint Counsel's Motion to Compel was improperly filed under Rule 

3.38, and that McWane moved to strike, or in the alternative, opposed, within the 10 day 

time period allowed for motions under Rule 3.22. 

Even if Complaint Counsel failed to comply with the meet and confer requirements 

ofRule 3.22 (discussed in relation to Respondent's Motion to Strike, below), Respondent 

was aware ofthat "fact" before its opposition to the Motion to Compel was due and before 

the date ofthe July 5 Order. Accordingly, Respondent has pointed to no: (a) material 

difference in fact or law from that presented to the Administrative Law Judge before such 

decision that could not have been known to Respondent at the time of such decision; (b) 

2 

new material fact occurring after the time ofsuch decision; or ( c) a manifest showing of a 

failure to consider material facts presented to the Administrative Law Judge. 

Because Respondent's Motion for Reconsideration fails to meet the standards for 


reconsideration, the Motion for Reconsideration is DENIED. 


III. Motion to Strike 

Respondent, in its Motion to Strike, seeks to strike Complaint Counsel's Motion to 

Compel on the grounds that it was premature and was filed before the completion of an 

appropriate meet and confer on the subject. Respondent represents that McWane's counsel 

informed Complaint Counsel during the meet and confer, and again via email the 

following day, June 22,2012, that McWane would consider Complaint Counsel's requests. 

Respondent asserts that, as ofJune 22,2012, Respondent was "still evaluating" Complaint 

Counsel's request that it supplement its responses, but Complaint Counsel proceeded to 

file its motion on June 25, 2012, before the meet and confer process was complete, in an 

apparent attempt to meet the June 25,2012 deadline for filing motions to compel. 

Complaint Counsel responds that Complaint Counsel fully met and conferred in 

good faith with Respondent before filing its Motion to Compel. According to Complaint 

Counsel: on June 18,2012, Complaint Counsel asked to set a time to meet and confer 

regarding Respondent's Requests for Admission Responses; Respondent's counsel was 

first available on June 20,2012; and Complaint Counsel and Respondent's counsel met 

and conferred during an hour-long telephone conference on June 20,2012. Complaint 

Counsel represents that Respondent's counsel, before making his refusal to amend final, 

stated that he needed to confirm Respondent's position internally. Complaint Counsel 

states that it emphasized to Respondent's counsel that the deadline for filing its motion was 

Monday, June 25,2012, and that Complaint Counsel therefore needed Respondent's final 

answer by no later than Friday morning, June 22,2012. Complaint Counsel further states 

that, after hearing no response from Respondent on Friday morning, Complaint Counsel 

followed up with counsel for Respondent on Friday afternoon. Finally, Complaint Counsel 

states that, having received no further response, Complaint Counsel understood 

Respondent's initial position during the meet and confer discussion to be its final position. 

To comply with the June 25,2012 deadline for filing a motion to compel, Complaint 

Counsel filed it Motion to Compel after 4:00 p.m. June 25, 2012. 

Respondent has failed to demonstrate that Complaint Counsel failed to properly 

meet and confer with Respondent's counsel in a good faith effort to resolve their 

disagreement before filing Complaint Counsel's Motion to Compel and that Complaint 

Counsel's Motion to Compel was premature. Accordingly, Respondent's Motion to Strike 

is DENIED. 

In the alternative, Respondent opposes the Motion to Compel, and argues that 

Complaint Counsel's Motion to Compel should be denied. As stated above, Respondent's 

opposition to the Motion to Compel was filed after the deadline for filing its response and 

after the July 5 Order ruling on the Motion to Compel. Respondent has failed to explain 

3 

I 

why the deadline was not met or to provide any basis for relieving Respondent from the 

time requirements imposed by Rule 3.38 or to otherwise reconsider any provisions ofthe 

July 5 Order. Accordingly, Respondent's request for consideration ofits untimely 

opposition is DENIED. 

"I ORDERED: 

Date: July 11,2012 

4