IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

AED EL-SABA, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00087-KD-N

)

UNIVERSITY OF SOUTH ALABAMA,)

Defendant. )

ORDER

This action is before the Court on the motion to reconsider (Doc. 59) filed by 

Plaintiff Aed El-Saba, which requests that the Court vacate its previous Order (Doc. 

58) denying El-Saba’s motion to compel discovery, re-open certain depositions, 

disqualify counsel, and extend the deadline for dispositive motions (Doc. 56)

(hereinafter, “the motion to compel, etc.”) both as untimely and for failure to include 

a good-faith conferencing certification.

“In the interest of finality and conservation of scarce judicial resources, 

reconsideration of an order is an extraordinary remedy and is 

employed sparingly.” Gougler v. Sirius Prod., Inc., 370 F. Supp. 2d 

1185, 1189 (S.D. Ala. 2005) (citation omitted). Generally, “[a] motion to 

reconsider is only available when a party presents the court with 

evidence of an intervening change in controlling law, the availability of 

new evidence, or the need to correct clear error or manifest injustice.” 

Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 

(M.D. Ala. 2003). See also Douglas Asphalt Co., v. QORE, Inc., 657 

F.3d 1146, 1151–1152 (11th Cir. 2011). However, “[m]otions for 

reconsideration should not be used to raise legal arguments which 

could and should have been made before the judgment was issued [ ]” 

Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir.

2001) (citations omitted), and “cannot be brought solely to relitigate 

issues already raised [,]” Harris v. Corrections Corp. of America, 2011 

WL 2672553, *1 (11th Cir. Jul.22, 2011).

Case 1:15-cv-00087-KD-N Document 60 Filed 08/11/16 Page 1 of 4
Bumpers v. Austal, U.S.A., L.L.C., Civil Action No. 08-0155-KD-N, 2015 WL 162610, 

at *1 (S.D. Ala. Jan. 13, 2015). 

Here, the only ground for reconsideration that is reasonably apparent from 

the motion is “the need to correct clear error or manifest injustice.” However, ElSaba has failed to demonstrate that either clear error or manifest injustice requires 

reconsideration of the Court’s prior determination that he failed to show diligence in 

bringing the motion to compel, etc., almost two weeks after the deadline for 

discovery had passed.

El-Saba claims that the Defendant’s amended privilege log produced on July 

14, 2016, four days before the discovery cutoff, “completely, unexpectedly exploded 

the scope and significance of the required motion practice...” (Doc. 59-1 at 4). 

Initially, El-Saba’s counsel, “not wanting to move for a second modification of the 

scheduling order, had thought he could timely cope with any assertions of privileges 

and problems with Alam’s deposition” and “that it would not be necessary to file a 

motion for leave to file the motion to compel out of time, nor one to modify the

scheduling order to take any depositions that might be compelled.” (Id.). However,

due to other work commitments and the difficulty “Eleventh Circuit privilege law 

proved,” “[a]s the deadline loomed, it became obvious that counsel could not meet 

it.” (Id. at 5).

Accepting these representations as true, they show that, prior to the 

discovery cutoff, El-Saba’s counsel was aware (1) significant discovery issues had 

been raised very close to the discovery deadline, and (2) he would not be able to 

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complete his motion to compel, etc. prior to the deadline. In light of this, El-Saba 

has given no reasonable excuse why he did not move to extend the discovery 

deadline on the basis of these consideration, rather than let it pass without 

comment as he continued to draft the motion to compel, etc., over the course of 

almost two additional weeks as the deadline for dispositive motions loomed. These 

concerns “could and should have been” raised prior to close of discovery; at the very 

least, they could have been raised contemporaneous with the motion to compel, etc. 

to excuse its tardy filing. As was pointed out in the Order El-Saba seeks 

reconsideration of, the scheduling order made clear that discovery motions were 

expected to be brought “to give adequate time for the court to consider them” – at 

the very least, no later than the discovery deadline. (See Doc. 58 at 1). Moreover, 

counsel for El-Saba acknowledges anticipating that at least a “limited extension” of 

discovery would be “a necessary component of the grant of the motion.” (Doc. 59-1 

at 6 – 7). Indeed, the motion to compel, etc. requested, in addition to the production 

of additional documents, the reopening of depositions for no less than five 

deponents. (See Doc. 56).1

 1 El-Saba argues that the Court should find “excusable neglect” for his tardy filing after 

consideration of the five-factor test in Pioneer Investment Services Co. v. Brunswick 

Associates Limited Partnership, 507 U.S. 380 (1993). However, Federal Rule of Civil 

Procedure 16(b)(4)’s “good cause” standard applies when excusing a motion filed after a 

scheduling order deadline, rather than the “excusable neglect” standard in Federal Rule of 

Civil Procedure 6(b). See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2 (11th Cir. 

1998) (per curiam).

Case 1:15-cv-00087-KD-N Document 60 Filed 08/11/16 Page 3 of 4
As El-Saba has not given the Court reason to reconsider its order denying his 

motion to compel, etc. as untimely, it is ORDERED that his motion to reconsider 

(Doc. 59) is DENIED.2

DONE and ORDERED this the 11th day of August 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 2 The motion to reconsider also provides the good-faith conferencing certification that was 

lacking in the motion to compel, etc., explaining that it was inadvertently omitted. (See Doc. 

59-1 at 7).

Case 1:15-cv-00087-KD-N Document 60 Filed 08/11/16 Page 4 of 4