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Fleming v. International Paper Co.

Court of Workers Compensation of Montana

December 20, 2005

ELDON FLEMING Petitioner
v.
INTERNATIONAL PAPER COMPANY, as successor-in-interest to CHAMPION INTERNATIONAL COMPANY, and LIBERTY NORTHWEST INSURANCE CORPORATION Respondents/Insurers.

          Submitted: October 11, 2005

         Appealed to Supreme Court 12/27/05 Reversed and Remanded 09/23/08

          ORDER DENYING THE FILING OF A REPLY BRIEF AND RECONSIDERATION OF ORDER DISMISSING INTERNATIONAL PAPER COMPANY

          JAMES JEREMIAH SHEA JUDGE.

         Summary: The petitioner alleges he suffers from asbestos-related lung disease as a result of his employment at a Libby, Montana, lumber mill from 1960 to May 28, 1998. The mill was owned by Champion International Company until November 1, 1993. It was thereafter owned by Stimson Lumber Company, which is insured by Liberty Northwest Insurance Corporation. Upon its motion, this Court previously dismissed International Paper Company pursuant to § 39-72-403, MCA (2003). Liberty Northwest's motion to dismiss was denied. From the Court's order dismissing International Paper, Petitioner sought reconsideration. This motion was denied on August 17, 2005. Petitioner then filed a second motion for reconsideration of this Court's Order denying Petitioner's first motion for reconsideration. With respect to Petitioner's second motion for reconsideration, he also moves the Court for leave to file a reply brief.

         Held: Petitioner's motion for leave to file a reply brief is denied. ARM 24.5.337 provides only for the filing of an initial brief in support of a motion for reconsideration and, upon receipt of a response or the expiration of the time for filing a response, the motion is deemed submitted. The rule does not allow for the filing of a reply brief in support of a motion for reconsideration and the Court declines to read such a provision into the rule.

         Being fully briefed, Petitioner's motion for reconsideration is deemed submitted and is denied. Although ARM 24.5.337(1) allows for reconsideration of any order or decision of the Workers' Compensation Court, which would include an order denying a motion for reconsideration, the interests of judicial economy and finality mandate that the Court will entertain motions for "re-reconsideration" only under compelling circumstances. The Court finds no such circumstances in the present case. To the extent that Petitioner raises a new argument which was not raised in either his response to International Paper's motion to dismiss, by way of Petitioner's own motion before International Paper was dismissed from this suit, or in Petitioner's first motion for reconsideration, the Court does not reach the merits of this argument because it is being raised for the first time in Petitioner's second motion for reconsideration. Petitioner has offered no compelling reason why this argument was not raised before a second motion for reconsideration. Absent such a compelling reason, the Court will not consider an issue that has not been raised previously despite ample opportunity to do so.

         Topics:

Procedure: Issues. Absent compelling circumstances, new issues may not be raised for the first time in a motion for reconsideration.
Procedure: Post-Trial Proceedings: Motion for Reconsideration. Absent compelling circumstances, new issues may not be raised for the first time in a motion for reconsideration.
Procedure: Post-Trial Proceedings: Motion for Reconsideration. ARM 24.5.337 provides, in pertinent part, that "[u]pon receipt of the response, or the expiration of the time for such response, the motion will be deemed submitted for decision unless the court requests oral argument." The rule does not allow for the filing of a reply brief in support of a motion for reconsideration and the Court declines to read such a provision into the rule.
Procedure: Post-Trial Proceedings: Motion for Reconsideration. Although ARM 24.5.337(1) allows for reconsideration of any order or decision of the Workers' Compensation Court which would include an order denying a motion for reconsideration, the interests of judicial economy and finality mandate that the Court entertain motions for "re-reconsideration" only under compelling circumstances.
Procedure: Rules. While the Workers' Compensation Court may look to the Montana Rules of Civil Procedure where its own rules are silent, it is not required to adopt the Rules of Civil Procedure.

         ¶1 Eldon Fleming (Petitioner) requests leave to file a reply brief to International Paper Company's (International Paper) response to Petitioner's brief in support of a second motion to reconsider.

         ¶2 The rule controlling motions for reconsideration in the Workers' Compensation Court is ARM 24.5.337, Motion for ...


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